Furlough following redundancy: employer says no!

s9905691

First post - here's a quick summary of my situation:

I was made redundant last month from an events company owing to the impact of coronavirus. Having only been with them since December, I didn't qualify for redundancy money.

In the past few days I've emailed my former boss to ask if he'd be prepared to furlough me, and explained that he'd need to temporarily put me back on the payroll for this to happen. I also said I wasn't seeking anything over and above the government's 80%, ie aside from some admin, it shouldn't cost him a penny.

He has replied to say he isn't prepared to furlough me because 1) it means he'd be liable for annual leave and sick pay, and 2) it would restrict him from changing the structure of the staff without making him liable for unfair treatment.

Does anybody know if the 2 points he makes are valid?! Surely if I'm not actually working for them then sick pay doesn't arise? Is he misunderstanding how furlough works? I've emphasised I'm not asking for my job back, merely to access the furlough scheme, and for him to facilitate that.

Really grateful for any advice! Thanks v much in advance. 

sharpe106

Yes they are valid, if they take you back for the scheme you are legally an employee again. Which is why accountants and lawyers are generally not recommending companies do.

sliphi

s9905691 said:

First post - here's a quick summary of my situation:

I was made redundant last month from an events company owing to the impact of coronavirus. Having only been with them since December, I didn't qualify for redundancy money.

In the past few days I've emailed my former boss to ask if he'd be prepared to furlough me, and explained that he'd need to temporarily put me back on the payroll for this to happen. I also said I wasn't seeking anything over and above the government's 80%, ie aside from some admin, it shouldn't cost him a penny.

He has replied to say he isn't prepared to furlough me because 1) it means he'd be liable for annual leave and sick pay, and 2) it would restrict him from changing the structure of the staff without making him liable for unfair treatment.

Does anybody know if the 2 points he makes are valid?! Surely if I'm not actually working for them then sick pay doesn't arise? Is he misunderstanding how furlough works? I've emphasised I'm not asking for my job back, merely to access the furlough scheme, and for him to facilitate that.

Really grateful for any advice! Thanks v much in advance. 

It's entirely up to your employer as to whether or not to agree to re-hire you.
- sounds like he's just making up excuses in an attempt to let you down gently after only working there 3 months or so.

You asked. He declined.
His loss in the long run, I'm sure.
Onwards and upwards

gary83

the excuses are potentially justified though, you would build up an entitlement to holidays again if he rehires you. 

sliphi

sharpe106 said:

Yes they are valid, if they take you back for the scheme you are legally an employee again. Which is why accountants and lawyers are generally not recommending companies do.

Neither our accountant, nor our legal advisors, have made such recommendation to us.

Lots of employers are taking advantage of the CJRS to take back employees they originally let go in the uncertainty leading up to the announcement of the scheme.

LilElvis

sliphi said:

sharpe106 said:

Yes they are valid, if they take you back for the scheme you are legally an employee again. Which is why accountants and lawyers are generally not recommending companies do.

Neither our accountant, nor our legal advisors, have made such recommendation to us.

Lots of employers are taking advantage of the CJRS to take back employees they originally let go in the uncertainty leading up to the announcement of the scheme.

You might want to read the guidance then. Leave continues to accrue at least at the statutory minimum during furlough and any holiday taken during furlough must be topped up by the employer. Therefore any employer kind/ foolish enough to agree to rehire a former employee because they believe that it will be at nil cost to them will be in for a rude awakening - furloughing for the full 4 months equates to 9 1/3 days of holiday pay that will be due - at a minimum cost of 20% of salary plus employers NIC. No wonder former employers and agencies aren't feeling very altruistic!

https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme#while-youre-on-furlough

sharpe106

sliphi said:

sharpe106 said:

Yes they are valid, if they take you back for the scheme you are legally an employee again. Which is why accountants and lawyers are generally not recommending companies do.

Neither our accountant, nor our legal advisors, have made such recommendation to us.

Lots of employers are taking advantage of the CJRS to take back employees they originally let go in the uncertainty leading up to the announcement of the scheme.

As above you might want some new legal advisers, or you might be in the fortunate position that you can afford to pay that. I doubt many companies are and if they are why do the need the scheme if they have kind of money to throw away. 

lopsyfa

s9905691 said:

First post - here's a quick summary of my situation:

I was made redundant last month from an events company owing to the impact of coronavirus. Having only been with them since December, I didn't qualify for redundancy money.

In the past few days I've emailed my former boss to ask if he'd be prepared to furlough me, and explained that he'd need to temporarily put me back on the payroll for this to happen. I also said I wasn't seeking anything over and above the government's 80%, ie aside from some admin, it shouldn't cost him a penny.

He has replied to say he isn't prepared to furlough me because 1) it means he'd be liable for annual leave and sick pay, and 2) it would restrict him from changing the structure of the staff without making him liable for unfair treatment.

Does anybody know if the 2 points he makes are valid?! Surely if I'm not actually working for them then sick pay doesn't arise? Is he misunderstanding how furlough works? I've emphasised I'm not asking for my job back, merely to access the furlough scheme, and for him to facilitate that.

Really grateful for any advice! Thanks v much in advance. 

You are actually asking for your work back. Furlough means you will be entitled to be treated as every other employees in the company.

s9905691

"You are actually asking for your work back. Furlough means you will be entitled to be treated as every other employees in the company."

No - I'm not asking for my work or job back. The only reason I'm asking to be (temporarily) put back on the payroll is because that's a requirement of accessing the furlough scheme. And if I am furloughed, I won't of course be allowed to do any work for them. 

sharpe106

s9905691 said:

"You are actually asking for your work back. Furlough means you will be entitled to be treated as every other employees in the company."

No - I'm not asking for my work or job back. The only reason I'm asking to be (temporarily) put back on the payroll is because that's a requirement of accessing the furlough scheme. And if I am furloughed, I won't of course be allowed to do any work for them. 

But if they put you back on the payroll you will again be an employee. There is no legal employment law that says a company can just employ someone to get a grant. You are either an employee or you are not. It might be the idea behind it but the government has not changed an employment law to say that a company can hire someone just to get the scheme and when it ends they are automatically terminated until it does why would any company risk it? It was again ministers saying something after being pressured without actually thinking how it would be implemented.  

LilElvis

s9905691 said:

"You are actually asking for your work back. Furlough means you will be entitled to be treated as every other employees in the company."

No - I'm not asking for my work or job back. The only reason I'm asking to be (temporarily) put back on the payroll is because that's a requirement of accessing the furlough scheme. And if I am furloughed, I won't of course be allowed to do any work for them. 

But you would then become entitled to all the rights ascribed to being an employee. Most seem to think that it's simple - put former employee back on payroll, pay them 80% of old salary and then reclaim from HMRC. Employee is still accruing holiday pay whilst on furlough - something the employer will be legally liable to pay out of their own pocket. Even if the holiday is taken during furlough the employer will be liable to top it up to the full 100%. Only a very benevolent employer would be prepared to pay out of their own pocket for ex employees.