Furlough, backdating, holiday pay

Romanov55

Hi all, a few issues.

My employer will be furloughing most of us from 6th April. We are all on 0-hour contracts. As per the guidelines they have calculated our last 12 month's average pay, excluding bonuses. However, being 0-h contracts, we don't get annual leave but get a payment in lieu of 12.07% of our basic pay. This is to allow us to put this aside for when we need to take time off without being financially penalised and forms part of our contracts. This is a standard clause for casual workers - some employers even retain this on behalf of the employee and pay it out when you want time off.

The employer is refusing to include this in the calculation even though the government has said only bonuses, commission and fees are to be excluded.

Second issue is on behalf of some colleagues. Over the past 2 weeks, our employer has needed to reduce hours due work being unavailable. They offered some staff a few reduced shifts and others were offered nothing. In normal circumstances work would have been available for all. The employer is refusing to backdate the furlough for those who had no work available saying it would be unfair on those who did work for those 2 weeks.

sliphi

Romanov55 said:

Hi all, a few issues.

My employer will be furloughing most of us from 6th April. We are all on 0-hour contracts. As per the guidelines they have calculated our last 12 month's average pay, excluding bonuses. However, being 0-h contracts, we don't get annual leave but get a payment in lieu of 12.07% of our basic pay. This is to allow us to put this aside for when we need to take time off without being financially penalised and forms part of our contracts. This is a standard clause for casual workers - some employers even retain this on behalf of the employee and pay it out when you want time off.

The employer is refusing to include this in the calculation even though the government has said only bonuses, commission and fees are to be excluded.

Second issue is on behalf of some colleagues. Over the past 2 weeks, our employer has needed to reduce hours due work being unavailable. They offered some staff a few reduced shifts and others were offered nothing. In normal circumstances work would have been available for all. The employer is refusing to backdate the furlough for those who had no work available saying it would be unfair on those who did work for those 2 weeks.

If your employer still has work for you do do, even if it's reduced hours (which is why presumably they have you on zero hour contracts), then you are not entitled to be furloughed under the CJRS.

You can work elsewhere, and you are not obliged to take any hours you are offered under the existing zero hours contract. That's standard and nothing to do with the current crisis.

sharpe106

The employer has a point it would be unfair to pay staff for doing nothing when he made others work. 

robbieN76

Is there a official notice on HMRC re the new furlough guidelines to those whom have left employment after 28th Feb to start a new role, but due to Covid 19 not unable to start ? I was due to start a new role next week but as a direct result of corona i am unable to start until further notice when things get back to normal. My old employer said that they will only rehire me and furlough when they see the official notice on gov.uk or from HMRC. Ive shown them Martin announcement and sent links but they will only do it when they see official guidance... Anyone know if this is up yet and where i can find it ? or when it will be ?
Thanks

sharpe106

Not up and running yet. 

Galloglass

Have a read of the ACAS page on this. It says

Using holiday

In most situations, employees and workers should use their paid holiday (‘statutory annual leave’) in their current leave year. This is 5.6 weeks in the UK.

This is important because taking holiday helps people:

• get enough rest 
• keep healthy (physically and mentally)

If an employee is 'furloughed' (temporarily sent home because there’s no work), they can still request and take their holiday in the usual way. This includes taking bank holidays.

https://www.acas.org.uk/coronavirus/using-holiday

Romanov55

sliphi said:

If your employer still has work for you do do, even if it's reduced hours (which is why presumably they have you on zero hour contracts), then you are not entitled to be furloughed under the CJRS.

You can work elsewhere, and you are not obliged to take any hours you are offered under the existing zero hours contract. That's standard and nothing to do with the current crisis.

Thanks for the reply, but that wasn't the issue. What the employer has said that even though they couldn't offer some staff shifts for the last 2 weeks due to the current situation, they won't be backdating any furlough for those 2 weeks despite being allowed to.

Romanov55

sharpe106 said:

The employer has a point it would be unfair to pay staff for doing nothing when he made others work. 

Thanks, but that's what will be happening going forward anyway. Some staff will work through on expected hours, some will be furloughed. The issue is that the employer is refusing to backdate that furlough for the previous 2 weeks when no work was available.

(Plus he didn't 'make' them work, they were offered and accepted)

Romanov55

Just bumping this in the hope of more input. Ta.

Jeremy535897

Does the updated guidance help?
https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme

Romanov55

Ooh, thanks, didn't know they'd updated them today. I'll have a read through them