new contracts and furlough

RTaylor91

During last lockdown, my employer put myself on furlough at 80% of my basic hours which during this time was 8 hours a week as a waiter while I was studying at university.

During lockdown, I had graduated university and was looking at my options of what to do next, however, once lockdown was lifted I returned to work to work in the kitchen (I worked as a chef for 8 years before attending university) as some chefs were still unavailable to work due to COVID-19. 

After 2 months of working in the kitchen, my manager asked me if I would like the kitchen manager position which I agreed to. He told me I would be put on a kitchen team leader position until I had done my training, but still signed a new contract on 9/10/20 for a new role, pay increase, and 48 hours of work a week.

This position was worked for nearly a month until the second lockdown happened and we were put onto the extended furlough scheme.

As the last furlough was based on 80% of hours lost because of lockdown I assumed I would get 80% of my new hours and new role, however, I have since been told that my pay will be based on what I got last furlough, which was only 8 hours a week compared to the average of 49 hours I have been doing since returning.

Hours worked In between the two lockdowns is shown below:

W/c 05/07 = 37.58

W/c 12/07 = 35.5

W/c 19/07 = 41.0

W/c 26/07 = 37.25

W/c 02/08 = 37.25

W/c 09/08 = 52.75

W/c 16/08 = 49.0

W/c 23/08 = 35.25

W/c 30/08 = 56.66

W/c 06/09 = 22

W/c 13/09 = 39.5

W/c 20/09 = 64.33

W/c 27/09 - 43.5

W/c 04/10 = 42.75

W/c 11/10 = 51.25

W/c 18/10 = 52.25

W/c 25/10 = 51.5

W/c 01/11 = 26.25

Last day working 04/11

Now because the hours worked are variable, they have calculated furlough based on the 2019 tax year which is when i was a student and averaged 8 hours a week. I understand how they have worked it out, and the calculations they have followed to work out my furlough, however, does having a new contract not mean they should put through a new claim for the new hours i have lost due to the second lockdown?

For the first furlough, I got a student loan which is why i only worked 8 hours a week - now i dont have a student loan, so my wages are needed to pay rent and other bills. So the difference between 192 hours and 32 hours a month is rather large.

All help and advice is greatly appreciated! I just need to know what next steps to take.
Kind regards, and take care

Jeremy535897

If you continue to work for the same employer, and were furloughed under the first lockdown, the amount your employer can claim under the CJRS for your wage is based on your reference salary as calculated for the first lockdown. What your employer has to pay you depends on your contract of employment, as amended by any furlough agreement. You have to agree to be furloughed, and if they propose to pay you 80% of 8 hours a week, you have to agree to that. If you don't, the default position is that they pay you for a 48 hour week at full rate (but depending on whether your contract allows for unpaid leave at their discretion, for example). They may decide that, particularly if you have been employed continuously for less than two years, it would be cheaper for them to let you go than incur costs they cannot recover in furloughing you at a higher rate..

RTaylor91

Hey Jeremy,
Thank you for taking time out of your day to reply, i greatly appreciate it.
I started work for the company in June 2016, so nearly 5 years ago, so it is certainly over the 2 year mark and have not agrred to only be paid 8 hours a week furlough for the second lockdown.
So the way i read that is: even if they can only claim my 8 hours a week furlough based on past calculations, my contract of employment states i should be getting 48 hours a week? is that correct?
ACAS also gave me advice that went along the lines of contractually agreed to be paid that much, so even if government supply less, the company should top it up, however i wasnt sure if that was truely correct. 

again, thank you for your help!

Jeremy535897

If your contract of employment says you should be paid 48 hours a week, that is what you should be paid. You should check it to see whether it permits unpaid leave at the employer's discretion, or short term working.

CJRS was only ever designed as a government grant to help fund employers, so they didn't have to make mass redundancies. However, lockdown followed almost immediately afterwards, and many employers, particularly in hospitality, "persuaded" their employees to accept that if they were furloughed, they only received 80% of their reference salary. This was normally done in the furlough agreement, although some employers took the decision to "persuade" working employees to take a pay cut as well.

Unless your contract of employment says otherwise, or you now agree to a change (by way of furlough agreement or otherwise, you should be paid the full 48 hours. As I said, they may decide to make you redundant instead, but you will have statutory (and possibly contractual) redundancy rights. For statutory redundancy, they normally look at the average of wages for the last 12 weeks (and furlough is counted as full wage as per your contract of employment).

I expect they will ask you to sign a furlough agreement under which you agree to the low figure already mentioned. You will have to decide how to respond. It is possible that if they say that is all that is on offer, you could resign and claim constructive dismissal, but this is not a step to be taken without proper legal advice.