Furlough contract change - should I sign this?

Gill_Ingham

Hi all, first timer so please be gentle - sorry this is a little long.
I've worked for my company for just under a year.  My employment contract states that "The period of notice from us to you will be 1 month, and you to us at 3 months".
I was officially placed on furlough on the 1st April (100%) of pay but was asked verbally to still do some work - which I am aware they shouldn't have done.  My company often think of inventive loopholes, and I was already losing confidence in them.
 I was brought back from furlough about 3 weeks later.  And then a few days later (last week) told my role would be going through redundancy consultation.  
As part of the consultation process I asked to instead be placed back on furlough whilst we see how the covid situation plays out, at just the standard 80% rate which was accepted and the consultation ended -  although I was told it was likely to be reviewed again at the end of May.
I have now been sent a couple of documents to sign retrospectively in regards to the 1st April -21st April period of furlough, and the current one which started on the first of May.  I obviously haven't signed it yet or responded.


I feel there are some potential red flags in these documents:
1)  April and May agreements states "If, for any reason, HMRC decides to reclaim or not pay us any monies in connection with your salary, we are entitled to reclaim or not pay it to you (including deductions from future salary payments), and no further payments shall be due" 
2) April agreement (but not May agreement) states "After the period of furlough, while we'll endeavour to provide you with work, in the event of insufficient work being available you agree we are entitled to lay you off without any pay except for statutory guarantee payments."
3) May agreement states "80% of your basic salary, up to a maximum of £2,500 per month. You agree to waive entitlement to any further remuneration during your Furlough".

Questions I would appreciate help on:
a) Is the clause in 1) typical and/or legal?  Surely this is a matter between the Government and the company?
b)  If I sign this and are subsequently made redundant, doesn't 2) mean I am waiving my right to the 1 month notice period pay in my original contract? Or does the fact it's omitted in the May agreement mean this only applied during the first period of furlough?
c) If I decide to now resign, which I'm strongly considering,  would I be entitled to my 3 month notice period/pay, or could my company make me redundant AFTER they have received my resignation to force  my notice period/pay down to1 month (or perhas less if I sign these documents?)
Thanks for reading,
Gill
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Jeremy535897

To get a comprehensive answer, you need an employment lawyer. I am not a lawyer, but I will give you my thoughts.
a) The clause in 1) is not unusual, albeit disappointing. It would be fairer if it was limited to cases where the failure to claim CJRS was your fault (for example you got another job on furlough with a linked or associated employer).
b) Whilst it seems 3) overrides 2), 2) might revive after the second furlough period expires.
c) Does your contract say you will be paid for your 3 months' notice period? That would be very generous. Your statutory entitlement would be 1 week notice and no redundancy.

They are in some difficulty too. You could report them for breaching the requirement that you do no work for the company while furloughed. They should not have furloughed you without your agreement. They should not be backdating changes in your terms of employment. The trouble is that you end up falling out, and having to take them to a tribunal, which is a lottery and very poor so far as future employment is concerned. If you have realistically reached the conclusion that you don't want to stay with them, I would suggest to them that you compromise by saying you want furloughing to the end of June on 80%, at which time you won't kick up a fuss if you both agree there is no future in your employment, so long as they give you a proper reference. They don't hold you to 3 months notice and you don't hold them to 1 month.

Gill_Ingham

Jeremy535897 said:

To get a comprehensive answer, you need an employment lawyer. I am not a lawyer, but I will give you my thoughts.
a) The clause in 1) is not unusual, albeit disappointing. It would be fairer if it was limited to cases where the failure to claim CJRS was your fault (for example you got another job on furlough with a linked or associated employer).
b) Whilst it seems 3) overrides 2), 2) might revive after the second furlough period expires.
c) Does your contract say you will be paid for your 3 months' notice period? That would be very generous. Your statutory entitlement would be 1 week notice and no redundancy.

They are in some difficulty too. You could report them for breaching the requirement that you do no work for the company while furloughed. They should not have furloughed you without your agreement. They should not be backdating changes in your terms of employment. The trouble is that you end up falling out, and having to take them to a tribunal, which is a lottery and very poor so far as future employment is concerned. If you have realistically reached the conclusion that you don't want to stay with them, I would suggest to them that you compromise by saying you want furloughing to the end of June on 80%, at which time you won't kick up a fuss if you both agree there is no future in your employment, so long as they give you a proper reference. They don't hold you to 3 months notice and you don't hold them to 1 month.

Thanks so much for taking the time to reply.  
In regards to notice period within my initial contract, there is no mention explicitly of pay, it literally just says:
"Excluding summary dismissal, the period of notice from us to you will be 1 month, and you to us at 3 months.  The notice period from the company will increase one week per completed year of service after the 3rd year.  The company reserves the right to ask you to leave immediately and pay salary in lieu of notice" - I thought that would mean I would get paid for the full duration of my notice period?  

I agree that your compromise solution sounds the most feasible, slightly amicable way out at present!
Thanks again,
Gill
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Jeremy535897

Yes, if they say they have to pay in lieu of notice, that means that the notice would be paid. In that case, you could say that you want another month's pay. If you decide to give it another chance, say you want the paid  notice adding to the agreement.

Gill_Ingham

Jeremy535897 said:

Yes, if they say they have to pay in lieu of notice, that means that the notice would be paid. In that case, you could say that you want another month's pay. If you decide to give it another chance, say you want the paid  notice adding to the agreement.

Wonderful - thanks again!

Jeremy535897

Remember, I'm not a lawyer, but it just doesn't make sense if they could make you work your notice unpaid, but would have to pay you in lieu if you didn't work your notice. They would hardly expect much productivity!