Furlough notice salary

valueman1

I’m on furlough and my employment contract says I get paid my normal salary during my notice period.  To avoid being paid my furlough salary, I was proposing to write to the the company advising that I want to withdraw from the furlough scheme and that I am ready and willing to work and then the following week hand in my notice. Would this work?

[Deleted User]

You can not "withdraw" from being furloughed. You can refuse an extension if they are proposing one and there was an end date in your furlough agreement. If there was no end date or the end date is after the end of your notice then there is nothing you can do. 

Do you already have a new job to go to?

Jeremy535897

See https://www.employmentcasesupdate.co.uk/site.aspx?i=ed40723

valueman1

Jeremy535897, my pay is higher than the £37,500 limit provided by furlough and has not been topped up, so based upon the case law during my notice period I would continue to receive my furlough payment and my company would have to top up to 100% of my normal salary. Is that correct?

poppy12345

valueman1 said:

Jeremy535897, my pay is higher than the £37,500 limit provided by furlough and has not been topped up, so based upon the case law during my notice period I would continue to receive my furlough payment and my company would have to top up to 100% of my normal salary. Is that correct?

Yes, that's correct.

Jeremy535897

If your contract says you get paid your "normal" pay while on notice, that ought to be 100% of your pay, not the reduced amount while on furlough (which is the conclusion reached for holiday pay in most cases). It will depend on the precise wording. The statutory notice provisions gives you the pre furlough rate, but only apply where your notice period under your contract exceeds the statutory notice entitlement by at least one week.
EDIT I mean that the statutory rules only apply where the notice period under the contract does NOT exceed the statutory entitlement by at least one week.

valueman1

Thanks poppy12345 and Jeremy535897, my contract says I receive my salary during my notice period.  Interestingly my Company has an 'information portal' for those of us on furlough which says that we would only receive our furlough pay during our notice period which is misleading.

Jeremy535897

See my edit to my previous post. As I said, it depends on the wording of your contract (assuming the statutory rules are displaced by it). If "salary" is defined as your pay at the time you give notice, that isn't helpful. The link I originally posted says:

"In what circumstances will an employee, given notice whilst on furlough, be entitled to 100% rather than 80% of their notice pay? Prior to going on furlough the employee will usually have agreed to vary the contract of employment in two respects; that the employer will no longer be legally obliged to provide the employee with work and that the employee will accept 80% of their contractual salary. If the employee agrees to these variations, is put on furlough on 80% of their normal pay, and they are then dismissed, the notice pay will depend on their contractual entitlement and whether this comes within the provisions of section 87(4). Thus if the employee is contractually entitled to at least one week's more notice than the statutory minimum section 87(4) would apply, section 88 would not apply and they would be only entitled to 80% of their pay. This is their contractual right under the furlough variation."

It also says:
"Mr Barnett in his article suggests a number of ways in which a tribunal might seek to ensure that employees receive 100% rather than 80% of their notice pay - these suggestions are given under the paragraph heading: Will tribunals follow the orthodox approach? I won't set these out here the article is available to view online."

valueman1

Thanks Jeremy535897, In the Contract under the heading Termination it states 'continue to receive your salary and other benefits'.  Under the heading Remuneration it states 'There will be no review of salary after notice has been given by either party to terminate your employment.' 

Jeremy535897

Firstly, does your contractual notice period exceed the statutory notice period (broadly one week for each year of service up to a 12 week maximum) by at least one week? See https://www.gov.uk/redundancy-your-rights/notice-periods
If not, the statutory notice rules apply, and that should give you 100% of your "normal" (pre-furlough) pay.

If your contractual notice exceeds the statutory notice by at least a week, which would normally be the case if your notice was 3 months as opposed to 12 weeks for example, you have to establish whether the phrase "continue to receive your salary and other benefits" refers to the pre-furlough salary or the furloughed salary. That will depend upon how "salary and other benefits" is defined, and whether any furlough agreement overrides the definition in the contract of employment. Best to answer my first question before examining this last point, where you will probably need to take legal advice if your employer insists on paying only the furloughed rate.

valueman1

Thank Jeremy535897, my contractual notice period is three months which exceeds the statutory notice period (4 years service = 4 weeks).  'Salary and other benefits' are not defined in this context.  It seems that my Company is of the opinion that the furlough salary has become the relevant salary for my notice period.  As you say, I may now need to take legal advice, although I do think a lot of employees will find themselves in a similar position.