Furlough Questions - Slightly confused by different views

Hagar_uk

Hi everyone,  First of a big thanks to to everyone on here who have been helpng spreading their knowledge of the furlough system to others.
I have a couple of questions if I may.
I have been furloughed. We and the others were given an email with a letter saying were were going to be furloughed (government scheme) starting from 4 days before the email was sent. We were never asked to agree or sign anything. However we were given 100% of our pay.
We have been told that for May Pay Roll, for us to get 100% of our wages we will need to take 2 weeks off during May.
Questions I have are:
1) Should we have needed to agree to furlough or does the full wages negate that.
2)Can furlough be backed dated like that?

3)Regarding the holiday, I understand that they can dictate when i take my holiday. But can that be done if on government paid furlough. (this is where I have read conflicting info)
My reasons for asking are mainly curiosity, I am aware I have been quite lucky so far. But there is also a good chance when furlough ends, Redunancy will be on the cards for some. And giving up 2 weeks holiday could mean we owe money for holidays rather than the otherway round if made rededundant

daKlone

My opinion is:

1) Yes, you need to agree to be furloughed...but since I assume you have not attended work and have been paid, it would be difficult to argue the point now.

2) Yes, it can be backdated. Did you work on any of the 4 days between the date of furlough and the email?

3) Yes, you can take leave (or be asked to) during a furlough period. You are entitled to 100% wages during the holiday, so the employer must make up the 20% themselves.

Hagar_uk

daKlone said:

My opinion is:

1) Yes, you need to agree to be furloughed...but since I assume you have not attended work and have been paid, it would be difficult to argue the point now.

2) Yes, it can be backdated. Did you work on any of the 4 days between the date of furlough and the email?

3) Yes, you can take leave (or be asked to) during a furlough period. You are entitled to 100% wages during the holiday, so the employer must make up the 20% themselves.

Thanks for your input.

2) I was working from home, so actually doing work, which maybe a grey area.  What not so grey is after still being asked to do the odd thing, but they have come to their senses now and stopped that.

3)I guess they would have to state which dates and formally allocate the holiday days? our boss called round and asked if this would acceptable to us, I suspect at the end of May we will just have 2 weeks removed from our holiday allowance.

A side question if a may, Is an employeer allowed to force hoildays more than have been accrued/Have available?

Jeremy535897

The guidance to employers on agreeing to be furloughed states:

"Agreeing to furlough employees

Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.

To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming through the scheme. Collective agreement reached between an employer and a trade union is also acceptable for the purpose of such a claim. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.

You do not need to place all your employees on furlough. However, those employees who you do place on furlough cannot undertake work for you."

Quite how the employer keeps your unwritten response for five years is not answered. Nor does it explain how it meets the conditions in paragraph 6.7 of the Treasury Directive (which takes precedence over the guidance if they conflict):

"6.7 An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment."

This also overlooks the fact that furloughing letters commonly contain changes to employment terms (such as a reduction in wages) that would need to be agreed by the employee, unless (exceptionally) the contract of employment allows unilateral amendment.

For the question on holiday pay, see Government guidance to employers:

"Holiday Pay

Furloughed employees continue to accrue leave as per their employment contract.
The employer and employee can agree to vary holiday entitlement as part of the furlough agreement, however almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which they cannot go below.

Employees can take holiday whilst on furlough. Working Time Regulations require holiday pay to be paid at the employee’s normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay received by the employee in the previous 52 working weeks. Therefore, if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations.

Employers will be obliged to pay additional amounts over the grant, though will have the flexibility to restrict when leave can be taken if there is a business need. This applies for both the furlough period and the recovery period.

If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay, or give the employee a day of holiday in lieu.

During this unprecedented time, we are keeping the policy on holiday pay during furlough under review."

daKlone

The strict letter of the scheme is that you should do no work at all during the furlough period. Whether or not you feel that it's worth making a fuss about is up to you...

They should formally allocate the dates and give you at least as much notice as the holiday, so if it's two weeks holiday, they should inform you two weeks in advance. Since they are paying you 100% wages anyway, in practise what you say is true, you'll just have two weeks holiday deducted.

As to if they can force more holiday than you have accrued, I don't know is the straight answer! From personal experience I have taken more holiday than I have accrued at times, so it would probably be up to the employer whether to allow it or not.

Jeremy535897

The concept of an employer asking an employee to take more holiday than they are entitled to is odd. I suspect that they want to reduce future holiday entitlement, but I don't think they can do that. Holiday entitlement is based on a holiday year, which nowadays normally starts on first day of  the employment unless otherwise provided in the contract of employment.

Undervalued

Jeremy535897 said:

The concept of an employer asking an employee to take more holiday than they are entitled to is odd. I suspect that they want to reduce future holiday entitlement, but I don't think they can do that. Holiday entitlement is based on a holiday year, which nowadays normally starts on first day of  the employment unless otherwise provided in the contract of employment.

Yes but some / many / most employers allow employees to take some leave before it is actually accrued. If the employee leaves before they have accrued enough leave to cover what has been taken it is reclaimed out of their final pay. That is quite normal.

However I understand the concern if, under the current circumstances, an employer insists on the employee taking significantly more leave than they have accrued so far but I am not sure it is actually unlawful.

Jeremy535897

No, I'm not sure either, but if it would result in the employee next holiday year being entitled to less than 5.6 weeks, it could fall foul of the working time directive. Even if employers and employees agree to it, does this actually alter the consequences arising from the fact that the employee won't get 5.6 weeks in the next holiday year?

Hagar_uk

Yes but some / many / most employers allow employees to take some leave before it is actually accrued. If the employee leaves before they have accrued enough leave to cover what has been taken it is reclaimed out of their final pay. That is quite normal.

However I understand the concern if, under the current circumstances, an employer insists on the employee taking significantly more leave than they have accrued so far but I am not sure it is actually unlawful.

Its an interesting one really, curious about the following, company has holiday year to match the taxyear, asks employees to take 2/4 weeks of Holiday in May under Furlough. Then makes people redudnant in June. Could the employee possibly face paying back nearly all of the holiday pay back to the employer, rather than the government who initially paid for most of it

Jeremy535897

That is by consent. I doubt an employer can force an employee to take next year's holiday this year.

As to your curious question, the contract of employment would have to specify that "overspent" holiday pay was recoverable from wages. If it did, he return of the monies originally covered by a CJRS claim might well be returnable to HMRC because of paragraph 2.4(b) of the Treasury Direction, but it is not wholly clear:
"2.4 Before making payment of a CJRS claim, HMRC must, by publicly available guidance, other publication generally available to the public, or such other means considered appropriate by HMRC, inform a person making a CJRS claim that, by making the claim, the person making the claim accepts that-
(a) a payment made pursuant to such claim is made only for the purpose of CJRS (and in particular as provided by paragraph 2.2), and
(b) the payment must be returned to HMRC immediately upon the person making the CJRS claim becoming unwilling or unable use the payment for the purpose of CJRS."

Undervalued

Hagar_uk said:

Its an interesting one really, curious about the following, company has holiday year to match the taxyear, asks employees to take 2/4 weeks of Holiday in May under Furlough. Then makes people redudnant in June. Could the employee possibly face paying back nearly all of the holiday pay back to the employer, rather than the government who initially paid for most of it

Basically yes!
I would assume the intention was, should that happen, the employer would eventually have to repay HMRC. Whether this hasty statutory instrument has been well enough drafted to ensure that happens is anybody's guess!