Sickness and Furlough Advice

gerald21

I was signed off sick by a doctor at the start of the month for 3 weeks. I sent my employer the sick note. The next day my employer sent me a document stating their intention to furlough me because of the pandemic. The document said it was my choice to accept or not but if I didn't then I could face unpaid leave or compulsory redundancy. I spoke to HR who said that their intention is to put me on furlough for the 3 weeks and then because my role is 'needed' I would hopefully return after 3 weeks and come off furlough. They are currently paying someone overtime to cover my role. I would only be paid 80% despite my contract stating I would get 100% full pay whilst sick (I have been there over 5 years). 
I am aware that an employer can use furlough for sick pay if there is an economic reason for doing so but I have also read that furlough should not be used for short term absences. Would anyone be able to advise? Many thanks in advance. 

MattMattMattUK

If they put you on furlough then it will only cost the company the NI, pension contributions and accrued holiday, if you are put on sick pay it will cost the company 100% of your salary, plus NI, pension contributions and accrued holiday. It is not in the spirit of the legislation, but it is something that they are probably proposing to save themselves money.

Is the company in financial difficulty? 

Jeremy535897

The guidance says:

"If your employee’s health has been affected by coronavirus (COVID-19) or any other conditions

Your employee is eligible for the grant and can be furloughed, if they are unable to work, including from home or working reduced hours because they:

• are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance
• have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household

If your employee is self-isolating or on sick leave

If your employee is on sick leave or self-isolating as a result of coronavirus, they may be able to get Statutory Sick Pay (SSP). The Coronavirus Job Retention Scheme is not intended for short-term absences from work due to sickness.

Short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee. If, however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees. In these cases, the employee should no longer receive sick pay and would be classified as a furloughed employee.

Employers can furlough employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus. It is up to employers to decide whether to furlough these employees. An employer does not need to be facing a wider reduction in demand or be closed to be eligible to claim for these employees.

You can claim back from both the Coronavirus Job Retention Scheme and the SSP rebate scheme for the same employee but not for the same period of time. When an employee is on furlough, you can only reclaim expenditure through the Coronavirus Job Retention Scheme, and not the SSP rebate scheme. If a non-furloughed employee becomes ill due to coronavirus, needs to self-isolate or shield, then you might qualify for the SSP rebate scheme, where you can claim up to two weeks of SSP per employee.

If your employee becomes sick while furloughed

Furloughed employees retain their statutory rights, including their right to SSP. This means that furloughed employees who become ill, due to Coronavirus or any other cause, must be paid at least SSP. Subject to eligibility this includes those self-isolating or clinically extremely because of Coronavirus. It is up to employers to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate.

If a furloughed employee who becomes sick is moved onto SSP, employers can no longer claim for the furloughed salary. Employers are required to pay SSP themselves, although may qualify for a rebate for up to two weeks of SSP if the sickness is related to coronavirus.

If employers keep the sick furloughed employee on the furloughed rate for the period that they are sick, they remain eligible to claim for these costs through the furloughed scheme."

If your contract entitles you to full pay while sick, then that is what they should pay, whether they furlough you or not. In addition, it is hard to see that your furlough would have anything to do with coronavirus, as you don't say that you are sick because of it, and your job continues to be done by someone else. This would mean they cannot claim CJRS in respect of furloughing you. The Treasury Direction says that to qualify for CJRS:

"(d) the instruction [to furlough] is given by reason of circumstances arising as a result of coronavirus or coronavirus disease or measures taken to prevent or limit its further transmission,"

Morrigan_2020

Are you in a union?

gerald21

Thank you for the comments. Yes I am seeking advice. It is something it seems they can do because they can state it is for financial reasons. Although they are not in difficulty yet they will argue that one day they could be. 

Jeremy535897

For all practical purposes, yes they can, as your remedy is to complain first, and then when that achieves nothing, an employment tribunal.