The government’s furlough scheme, which went live for claims on 20 April and has been extended to the end of June, is an unprecedented measure to support employment.
Employers can apply for a grant to cover 80% of the salary of employees up £2,500 per month, backdated to 1 March where those employees are placed on ‘furlough’. Furloughed employees must do no work for their employer during the period of furlough which must last for at least three weeks.
Not all employers will be able to apply for furlough grants, for example where they receive public funding for staff costs or because the expected period of no work is shorter that the three weeks’ furlough required.
Others may not wish to apply either because their businesses are not severely affected by the impact of coronavirus or because only a small number of roles are impacted or some work is still required to be done.
In such cases and in dialogue with employees and, where relevant, trade unions, there are a number of short-term measures that employers can explore as alternatives to furlough where there has been a drop off in demand affecting a particular role or group of roles.
As a short-term measure, employees may be prepared to take paid holiday over the coming weeks. As well as exercising any relevant contractual rights, under the Working Time Regulations 1998, employers can give notice to require employees to take their statutory leave.
Some employees, faced with not being able to attend work for personal or family-related reasons, may be prepared to take extended leave of absence. As an agreed variation of contract, continuity of service for the purposes of employment rights would be preserved.
One option that may be welcomed by eligible employees is the opportunity to use parental leave. This allows for 18 weeks of leave per child who is under 18.
Normally restricted to four weeks per year, the employer can relax this requirement and allow more leave in a year and/or the taking of leave as single days as opposed to in full weeks. Although the leave is unpaid it has the advantage of preserving the employee’s role as the contract continues whilst the employee is away from work.
Those with babies or who have recently adopted could consider whether they want to convert any remaining maternity leave into shared parental leave to allow them to transfer entitlement to the parent impacted by the falling demand. If feasible, they can share up to 50 weeks of shared parental leave and 37 weeks of shared parental pay between them.
Some organisations, like supermarkets and delivery services, have an urgent need to recruit more workers. Organisations with reduced demand could relax exclusivity provisions in contracts so that their employees can take up short-term appointments with others.
Employers could also encourage relevant workers to take up volunteering leave. Employees can volunteer to work in the NHS or social care sector for one block of two, three or four weeks in any 16-week volunteering period.
During volunteering leave employees remain entitled to all contractual benefits except pay. At the end of the leave they return to the role they left, terms and conditions intact.
They are protected from detriment or dismissal because they have taken or sought to take volunteering leave and that protection does not depend on length of service.
Some employers may still need to consider short-time working which can only be imposed where there is a contractual right. If not, then employees will need to consent to the change but may agree if they believe this might preserve their employment in the longer term.
If an employer imposes short-time working without consent it risks claims for unlawful deductions from wages, unfair dismissal and breach of contract.
The situation remains a rapidly changing one and employers need to stay aware of latest government advice and guidance. Some creative thinking and an open dialogue with employees can potentially minimise the disruption to the employment relationship leaving organisations better configured to take advantage of the upturn in due course.
Annelise Tracy-Phillips is a senior associate in employment law at Burges Salmon
This article is an update of the legal ease in April's issue of HR magazine.
