Furlough Notice

LunaRapz

Hi all!

My partner is currently on furlough leave, paid 80% of her usual wage. On Friday she was informed that she will be made redundant. Her employer has said that she will be furloughed until the end of October, and the last 9 weeks of that will be full pay, which will class as her redundancy payment.

We are aware that this isn't legal, as the furlough pay to the government is technically a grant, and grants can't be used as redundancy pay- so we are planning on waiting until she gets her notice of the official end date of furlough from them, and for her to then mention about the redundancy pay- so she can hopefully be on furlough pay until the end of October and THEN 9 weeks redundancy pay.

My question is- once the employer has given her an official end date for her furlough, could they withdraw this and issue a new notice, with an earlier end date for furlough? We're trying to work out if we should raise the redundancy pay issue with them sooner, or wait until October to mention it

Thank you so much!

unholyangel

More info needed. Length of service, if contractually entitled to better than statutory notice/redundancy. If any PILON is involved. Or holiday pay. 

But I will say that even if the employer claimed when they shouldn't, it won't entitle her to another 9 weeks. It would just mean the employer has to repay the CJRS funds. 

LunaRapz

9 years length of service, I believe she is entitled to some uplift on the redundancy payout, but our main concern is when we should bring it to their attention that they aren't able to do it this way- she'd be on EITHER redundancy, OR furlough pay. Not both at the same time. My current understanding is that, if we hold off until October to tell the employer, they wouldnt be able to retract the furlough pay that the government have already paid her (through the company), and they would need to give her the 9 weeks redundancy pay that she's entitled to?

Jeremy535897

LunaRapz said:

9 years length of service, I believe she is entitled to some uplift on the redundancy payout, but our main concern is when we should bring it to their attention that they aren't able to do it this way- she'd be on EITHER redundancy, OR furlough pay. Not both at the same time. My current understanding is that, if we hold off until October to tell the employer, they wouldnt be able to retract the furlough pay that the government have already paid her (through the company), and they would need to give her the 9 weeks redundancy pay that she's entitled to?

This would require legal advice. She would be aware of the reason why the employer was paying her weekly rather than a lump sum. If she appears before an employment tribunal to demand a further 9 weeks, would they decide in her favour? I don't know. It might be worth reading up on the doctrine that you need to come to equity with clean hands.

LunaRapz

She'd be getting 9 weeks pay for the 9 weeks redundancy she should get (9 years service, a week of pay per year). What doctrine are you referring to in your post? We're a bit lost on what to do and where to get advice

sharpe106

I doubt if it went to an employment tribunal they would make them pay the employee another 9 weeks, as they would have paid the redundancy money. They would have to pay back the money they took from the scheme and whatever punishment was handed out for the fraudulent claim. Not to mention that two wrongs don't make a right. 

Blue_sky101

LunaRapz said:

She'd be getting 9 weeks pay for the 9 weeks redundancy she should get (9 years service, a week of pay per year). What doctrine are you referring to in your post? We're a bit lost on what to do and where to get advice

I’d advise you contact ACAS or CAB for advice on this one.

unholyangel

LunaRapz said:

9 years length of service, I believe she is entitled to some uplift on the redundancy payout, but our main concern is when we should bring it to their attention that they aren't able to do it this way- she'd be on EITHER redundancy, OR furlough pay. Not both at the same time. My current understanding is that, if we hold off until October to tell the employer, they wouldnt be able to retract the furlough pay that the government have already paid her (through the company), and they would need to give her the 9 weeks redundancy pay that she's entitled to?

But what you're suggesting is that the company are claiming CJRS for the period that your partner will be paid full pay for redundancy. 

Ergo, your partner will receive the right redundancy pay and the company would have to repay whatever costs they claimed for your partners wages during that period - if they claimed. 

It will not result in another 9 weeks for her. 

LunaRapz

sharpe106 said:

I doubt if it went to an employment tribunal they would make them pay the employee another 9 weeks, as they would have paid the redundancy money. They would have to pay back the money they took from the scheme and whatever punishment was handed out for the fraudulent claim. Not to mention that two wrongs don't make a right. 

yeah this makes sense! For me, its more a matter of principles- her job isn't redundant, the demand will (100%) pick up when things reopen, so her job will be needed, just maybe not needed right now as the demand isn't there (which is the whole point in furlough!). They've also been a consistently bad employer when we were working out maternity leave, etc., with them trying to do dodgy things (like this) to walk all over their staff. I completely agree that two wrongs dont make a right, but I'm not happy, as a taxpayer, with my taxes going towards her redundancy pay- that's not something taxpayers should be paying for!

sharpe106

You can report them to HMRC that is all you can really do. 

Jeremy535897

The point about equity and clean hands is that if you accept 9 weeks furlough, knowing that your employer thinks that it is redundancy, and knowing the employer is trying to avoid having to pay for your redundancy by abusing CJRS, if you then ask a tribunal for 9 weeks as redundancy, you are not in the same innocent position as an employee who is simply sacked, and whose employer refuses to pay them any redundancy.