Forced to work whilst on furlough - what are my options?

JReacher1

It sounds like they originally put you on furlough to end of June but have now changed their mind and want you back next week. That would be legal and your statement of being forced to work while on furlough is incorrect. 

Everything else they’ve done appears to be dodgy. 

Manxman_in_exile

I think what the OP means is that they are a member of a union, but that because their employer doesn't recognise the union the OP and his/her colleagues have always assumed the union would be of no use to them.  (Well I don't know - that's the best sense I can make of it but it still doesn't make any real sense to me!)

OP - is it, for want of a better phrase, "a proper" union, or is it just some small or loose association of workers in a particular trade who don't have much experience of dealing with employers?  I simply don't understand your "union's" response that you and your colleagues are too small a group of people to be represented.  Presumably you are not so small a group that you don't need to pay union subs?  Assuming it is a proper union, have you only been dealing so far with some local rep?  If yes, you need to get in touch with your union's regional office and get someone who knows what they are doing to get on the case.  Ask them what you are paying subs for if they literally can't be a**** to represent you.

And if that doesn't work, I'd be looking for a better union to pay my subs to.  (Any union would be better than the one you are currently a member of).

Comms69

Manxman_in_exile said:

I think what the OP means is that they are a member of a union, but that because their employer doesn't recognise the union the OP and his/her colleagues have always assumed the union would be of no use to them.  (Well I don't know - that's the best sense I can make of it but it still doesn't make any real sense to me!)

OP - is it, for want of a better phrase, "a proper" union, or is it just some small or loose association of workers in a particular trade who don't have much experience of dealing with employers?  I simply don't understand your "union's" response that you and your colleagues are too small a group of people to be represented.  Presumably you are not so small a group that you don't need to pay union subs?  Assuming it is a proper union, have you only been dealing so far with some local rep?  If yes, you need to get in touch with your union's regional office and get someone who knows what they are doing to get on the case.  Ask them what you are paying subs for if they literally can't be a**** to represent you.

And if that doesn't work, I'd be looking for a better union to pay my subs to.  (Any union would be better than the one you are currently a member of).

I kind of think it might be as you describe. But what union manages to recruit everyone in the same team; and tell all those same members they wont represent? 

As you say if this is a proper union, and not some wishy washy thing (which even then must have some accreditation if they're taking fees), then i cant imagine this response being the final say in the matter. 

ruddyrum

I didn't want to divulge too much information, as I didn't see it as relevant. Furlough has simple guidelines and I was curious if the procedure to rectify any incorrect implementation of the of the policy would be just as simple. My union is BALPA; fees automatically come out of my pay and I believe this to be the case for everyone in my industry unless you opt out. BALPA has no problems representing our national carrier or similar companies, but my employer's modus operadni is so fragmented with separate sister/umbrella companies that this becomes a bit of a minefield for the union to approach. I'm sure you can all guess who, without mentioning names given the questionable nature of how they have gone about this process. I have never needed to use the union before, but have since learned that I am better off keeping the fees I pay the union to myself.

I feel we are getting slightly side tracked here. The 4.1 bn is quoted from the correspondence I received. I  just looked it up and as of December 2019 the company I work for had over £7bn equity, making the 4.1 plausible. Getting back on point:
- Union is of no use. They have been contacted and they will not represent me. They said they can offer advice and guidance but that's where they draw the line.
-Employer (both management and HR) have been consulted. Bottom line is work for furlough or don't work and don't get paid. Although they have left that decision down to me, it will be unfavorable for me not to go to work
My entire team is in the same boat. We are fearful that if we do not comply we will be out of work, but at the same time realise that what is being done is totally incorrect. I am trying to pursue all available avenues to try and get this rectified, but am running out of suggestions

Comms69

ruddyrum said:

I didn't want to divulge too much information, as I didn't see it as relevant. Furlough has simple guidelines and I was curious if the procedure to rectify any incorrect implementation of the of the policy would be just as simple. My union is BALPA; fees automatically come out of my pay and I believe this to be the case for everyone in my industry unless you opt out. BALPA has no problems representing our national carrier or similar companies, but my employer's modus operadni is so fragmented with separate sister/umbrella companies that this becomes a bit of a minefield for the union to approach. I'm sure you can all guess who, without mentioning names given the questionable nature of how they have gone about this process. I have never needed to use the union before, but have since learned that I am better off keeping the fees I pay the union to myself.

I feel we are getting slightly side tracked here. The 4.1 bn is quoted from the correspondence I received. I  just looked it up and as of December 2019 the company I work for had over £7bn equity, making the 4.1 plausible. Getting back on point:
- Union is of no use. They have been contacted and they will not represent me. They said they can offer advice and guidance but that's where they draw the line.
-Employer (both management and HR) have been consulted. Bottom line is work for furlough or don't work and don't get paid. Although they have left that decision down to me, if will be unfavorable for me not to go to work
My entire team is in the same boat. We are fearful that if we do not comply we will be out of work, but at the same time realise that what is being done is totally incorrect. I am trying to pursue all available avenues to try and get this rectified, but am running out of suggestions

More and more questions - but primarily how the union is washing it's hands of this. Call head office, I just cant believe this response is the 'party line'. If they refuse to represent, complain. 

The rest - well frankly this is slam dunk Employment Tribunal stuff.

TELLIT01

Furlough has been introduced to enable companies to retain their workforce when there is no work, but to have 80% of their wage bill covered by the Government.  In the situation outlined by the OP, being told to return to work in early May, the employer is doing nothing wrong unless they try to continue to claim the furlough payment.  Furlough is not intended to be paid holiday, as the OP would almost seem to be suggesting, given that they object to the idea of returning to work. 

An employee cannot do paid work for that employer whilst in receipt of furlough payment.

ruddyrum

- The correspondence I received stated that my team would be put onto the JRS for April and May 2020.
- It stated my furlough period was for April and that I am to be back at work for May, whilst still on the JRS... surely this is not correct. If I return to work then I should receive my normal pay OR a discussion take place to arrange a alternative wages. Surely they cannot dictate putting me on the JRS and then make me work? or have I missed something here.
- The aforementioned letter was dated 20th April, so how can they notify me that I was on furlough retrospectivly from April 1st... surely I can only be furloughed after the letter and even then I should have been in agreement, prior to the letter being sent.
- Some of my team have worked prior to receiving this furlough letter. They were under the impression they were to receive the usual pay, but have been told the JRS was implemented from April 1st so will therefore not receive usual pay, but instead the furlough payment... surely they shouldn't have been working if that is the case?

The comment of paid holiday made me chuckle, as I was on annual leave for April, but have since had my leave credited back to me and instead oof receiving my usual holiday pay, am receiving the JRS. I am not objecting returning to work, simply questioning the legality if I do, it should under normal or re-negotiated pay and not using tax payers money.

Also, if I work, am I incriminating myself or is only the employer held accountable?

Masomnia

It's your employer's problem.

The way it works is that they declare to HMRC that you have not done any work for the furlough period, and they write to you notifying you that you're on furlough and won't be working etc. In return HMRC refund your employer 80% of your pay up to a max of £2,500 + NICs etc. Your employer then pays this on to you.

Your employer needs to keep these records for 5 years in case HMRC audit them to ensure that they followed the procedures; if they don't do it correctly, or claim fraudulently then HMRC can reclaim the money from your employer. 

Essentially the risk is your employers. HMRC won't come after you, but they might they might pursue your employer for the money back that they've paid them, or worse could consider it fraud, who knows? 

HMRC are apparently going to set up a whistleblowing line to allow employees to report employers who flout the rules, so you could consider this.

sharpe106

Last week I received an email from HR saying that from the 1st April I was retrospectively placed on furlough (I thought a discussion had to take place?) and that I will remain on the Job Retention Scheme (JRS) until the end of May 2020. Firstly, they seem to have backdated my Furlough without me knowing - I was expecting full pay as I was on technically on leave, but now am receiving the payment under the JRS.

 You will still have your holiday leave to take. Rather than using it all. So to me that would be worth the 20%. You could ask them to use your holiday leave and top you up to 100% if you wanted. They may or may not agree to it

 Secondly, I have been informed that I am to return to my duties from May (next week) even though I am on the JRS. I know that I cannot work whilst on the JRS but I want to know what options are available to me as speaking to my line manager has had little impact. I believe he doesn't fully understand the matter and keeps referring to contractual obligations etc.

 I think the main issue is they have no clue what they are doing or how to communicate it. Like you said if you are on furlough you can’t work for them.

 I have sent HR 2 emails and have not received a response. I cannot not turn up for work and I fear that if I do not work they will do everything in their power to try and make my life difficult or even worse, force redundancy. What options are available to me outside of my employer as management are clearly burying their head in the sand on this one?

 Why can you not turn up for work? Nothing saying you can’t attend the place, just that you can do no work. Surely that would be the best thing to turn up and talk to them as they are not responding to emails. They may not fully understand that you can’t work or they may have decided to cancel furlough and have communicated it badly. But to me going in would be the best way to get it sorted.

If they are claiming furlough and making you work except for reporting them you have no other real options as like you said they would make your life difficult or make you redundant.

Manxman_in_exile

I tend to agree with sharpe106.  It sounds to me like your employer hasn't a clue how furlough is meant to work and/or they couldn't communicate their way out of a paper bag.  That sounds more likely than that they are deliberately conspiring to defraud the government.  (But perhaps I'm being over-generous!)

If you can't get a sensible answer out of HR or management, then as sharpe106:  "They may not fully understand that you can’t work or they may have decided to cancel furlough and have communicated it badly. But to me going in would be the best way to get it sorted."