Ending Furlough: FAQs for employers

With the Coronavirus Job Retention Scheme due to end on 31 October, the following FAQs look at the main issues for employers. 

Contents

Ending furlough: the options
Health and safety
Notice of termination
Redundancy
Annual leave

How long is the Scheme going to last?

The Coronavirus Job Retention Scheme ('the Scheme') opened on 20 April 2020. It was set up to reimburse a proportion of 'furloughed' employees' wages i.e. employees on a leave of absence who are kept on your payroll. See Furlough: Coronavirus Job Retention Scheme for FAQs on eligibility and the terms of the Scheme.

The Scheme was originally in place for four months, from 1 March 2020 until 30 June 2020. However, it was announced on 12 May 2020 that it would be extended until 31 October 2020 across all sectors and regions. Employees will continue to receive 80% of salary (up to £2,500 per month) while furloughed - but a new taper requiring employers to contribute to furloughed salaries will be brought in from August. From the start of July furloughed employees will be able to return to work part-time (flexible furlough) with employers claiming under the Scheme for their normal hours not worked. For more information see Furlough: Coronavirus Job Retention Scheme and the government fact-sheet. See in particular: 

How do we end a period of furlough?

Neither the HMRC Guidance nor the Treasury Direction provide a mechanism for ending furlough. Therefore, if you want to end a period of furlough leave and bring an employee back to work, look at the terms of the furlough agreement you have with your employees. For example, our template letter provides that furlough leave will end on the earliest of the following events:

  • the date the government ends the Scheme;
  • the employee or the employer ceasing to be eligible for funding under the Scheme; or
  • the employer notifying the employee of a decision to end furlough leave.

The notification of a decision to end furlough leave should clarify which terms and conditions of employment will apply; highlight the health and safety issues arising from returning to work (including whether any reasonable adjustments are required for disabled employees); and make it clear that you are reserving the right to put the employee back on furlough at some point (unless you are ending furlough at the same time as the Scheme is closing).

There is no minimum period of notice required to end furlough (unless it was agreed as part of the furlough agreement), although you would be expected to give reasonable notice of the change: contact us to discuss this.

See our template notification of end of furlough letter.

If you are moving an employee from full-time furlough to part-time flexible furlough then you will need to enter into a new agreement: How do we furlough employees?

How do we choose which employees to take off furlough?

You might end furlough for all your employees at the same time. However, you may wish to end furlough for just a section of your workforce - particularly as the social distancing guidelines are likely to restrict the number of individuals who will be able to attend the workplace at one time. In this case, identify which areas of the business you need people back at work in first.

You might initially want to ask for volunteers from this group. If you do, reserve the right to refuse applications; and ensure that the reason for any refusal is fair and documented.

If you then need to move to a selection process, follow a fair and transparent exercise. Select returners using objective criteria such as skills / experience, based on the needs of the business at that time. The usual protection against discrimination will apply. Contact us to discuss what a fair process might look like.

It is a good idea to engage with employees about selection at an early stage of the process so that you are made aware about any individual concerns about returning to work. Despite the financial advantage in returning to work it is likely that some employees will be more reluctant than others to come back e.g. because they are living with someone who is shielding / need to commute and have concerns about using public transport. See below in relation to employees who are themselves shielding or in the vulnerable group.

The same principles would apply when deciding which employees to select for 'flexible furloughing' - permitted in terms of the revised scheme from July.

What about employees who are shielding, or who have an underlying health condition?

Some individuals, with certain underlying health conditions, received individual notifications from the government advising them that they are extremely vulnerable to coronavirus, and to protect themselves by shielding. You could not ask these individuals to attend work while they were 'shielding'.

The latest Scottish government advice for those shielding in Scotland is here. This advises that shielding has been paused from 1 August, meaning that those who were advised to shield can now follow the same guidance as the rest of Scotland. The Scottish government guidance on returning to work for those who were shielding is here. The advice is still to continue to work from home where possible.

The latest UK government advice for those shielding in England is here. This advises that shielding has been paused in England from 1 August. From that date, individuals who were shielding can go to work so long as the workplace is 'COVID-secure', however, importantly it notes that they should carry on working from home wherever possible. They are also advised to continue to follow strict social distancing. For more information on 'COVID-secure' workplaces see Coronavirus: Workplace Health and Safety.

For individuals who are not 'shielding' but who may otherwise be vulnerable due to a health condition, see the table here.

Before bringing anyone back to work you will need to carry out a Covid-19 risk assessment (Health and safety COVID-19 risk assessment). This should specifically consider vulnerable workers, or those living in vulnerable households, and workers with protected characteristics who are disproportionately at risk from coronavirus (e.g. disabled, pregnant, obese or BAME workers). Have a look at our page on Coronavirus: Workplace Health and SafetyContact us to discuss this further.

What can we do if an employee refuses to come off furlough and return to work?

If an employee refuses to return to work after you have ended their period of furlough leave, or refuses to work part-time while furloughed - as permitted under the scheme from July, potentially they could be subject to disciplinary action for unauthorised absence / refusing to comply with a lawful instruction. However, exercise caution and don't jump straight to a disciplinary process. Engage with the employee and find out why they are unable to return to work. It may be, for example, because:

  • They are required to shield. Insisting that someone required to shield returns to work risks breaching health and safety and discrimination (disability) legislation - read more here
  • They have health and safety concerns. Bear in mind that if an employee refuses to attend work, because (i) they reasonably believe that there is a 'serious and imminent danger' – which could be the case if you have not taken suitable steps to protect against coronavirus; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by wearing appropriate PPE that you have provided and maintaining social distancing), then it would be automatically unfair for you to dismiss them, and unlawful for you to subject them to a detriment (such as a disciplinary sanction) as a result. See: What if an employee refuses to come to work, but they are not covered by Government or medical advice to self-isolate, and are not in a high-risk category? Employees might also be protected under the whistleblowing legislation. Whistleblowing is the disclosure of information by a worker which relates to some danger, fraud or other illegal or unethical conduct in the workplace, including for example health and safety risks.
  • There is no available childcare. In this case, engage with the employee and discuss the potential options with them e.g. flexible working, parental leave, period of unpaid leave.

Contact us to discuss the options and risks if there is a challenge from an employee who does not want to come off furlough. 

What are the options after the Scheme is closed?

In addition to using the Scheme, you may have already taken some steps to minimise staff costs (recruitment freezes; varying benefits e.g. discretionary bonuses; reviewing contractor and agency staff arrangements; not renewing fixed term contracts; using cheaper outsourcing / secondment arrangements). However, when the Scheme comes to an end this may not be enough. Potential options when furlough has come to an end include:

  • Ending furlough - employees work on their existing terms and conditions
  • Ending furlough - employees work on new terms and conditions e.g. reduced hours and pay / reduced pay / new shift pattern
  • Extending furlough without the HMRC grant
  • Utilising the Government's Job Support Scheme (see below for more details)
  • Making redundancies
  • Other options – a full list is set out below

If seeking consent to amended terms and conditions, think carefully about timing, and engage with employees early in the process. If employees are at home, consider how to manage the process virtually (e.g. a virtual presentation followed by virtual 1-2-1 meetings); and how written consent will be obtained. 

Job Retention Bonus / other government initiatives

The Government have also annonunced a 'Job Retention Bonus' as an incentive for employers to keep on furloughed employees after the Scheme ends on 31 October 2020, which you may be eligible for. See the section on this below. 

The Government have also announced their intention to introduce further funding and payment initiatives for employers who employ and train younger workers (aged 16-24) to help them to gain relevant skills and experience. More detail on these initiatives can be found here

Ending furlough - employees work on their existing terms and conditions

This is straightforward but the most expensive option. You would notify employees in writing of their return to work date and clarify the issues highlighted at How do we end a period of furlough?. There is no minimum period of notice required to end furlough (unless it was agreed as part of the furlough agreement), although you would be expected to give reasonable notice of the change: contact us to discuss this.

Ending furlough - employees work on new terms and conditions 

There are a number of different types of change you might want to introduce before employees return to work, for example:

  • Reduced hours and pay
  • Reduced pay
  • New role
  • Introduction of new or varied shift / rota pattern
  • Adjusted start and finish times
  • Varied commission or bonus terms
  • Varied pension or insurance entitlement

First, check whether the employee's contract gives you a right to vary the relevant term (Changing Ts & Cs: do we need consent?). For example, if you have a contractual right to impose short-time working (reducing hours so that remuneration for the week is less than half a week’s pay), you could rely on this to reduce hours and pay without having to get employee consent. Employees with two years' service can resign and claim statutory redundancy pay after being on short-time working for four consecutive weeks, or six weeks in a rolling period of 13 weeks. Read more at Lay-off and Short-time working .

If there is no express contractual right to make the change, seek the employees' consent - seeking consent. This could be either directly with employees, or via collective bargaining if there is a validly incorporated collective agreement in place (if there is an agreed collective bargaining process in place, abandoning this in favour of individual deals risks unlawful inducement claims). Record anything which is agreed in writing.

Employees may be willing to agree if this will avoid redundancies. However, if you cannot get consent, your options are to:

See Changing/Harmonising Terms & Conditions and contact us to discuss the best approach in your circumstances. 

The collective redundancy consultation obligations could apply, depending on your approach. If you plan to force through the changes by dismissal and re-engagement if employees don't consent, or the offer is an alternative to making redundancies, then the collective consultation obligations may be triggered (if 20 or more dismissals are proposed at one establishment within 90 days). Information on collective consultation is at Redundancy: Consultation but you should contact us to discuss your obligations and an appropriate process.

Extending furlough without the HMRC grant

It may be too expensive to continue with furlough without the HMRC grant. However, it might be an attractive option if there isn't enough work for everyone, but you anticipate that this may be temporary.

Doing so would require a new 'furlough' agreement with employees. It could be on the same or amended terms as applied during furlough under the Scheme – in particular, the government furlough scheme meant that workers received 80% of salary, however, you could offer furlough on less than this (e.g. 60% of salary). Some furlough agreements may need to be revised to avoid referring to the government scheme to ensure that the agreement is accurate.

It would be essential for you to obtain employee consent for this option, and it will be difficult to predict employee take-up. However, if the alternative is redundancy, employees might be prepared to agree to an extended period of furlough.

The collective redundancy consultation obligations could apply, depending on your approach. If you plan to force through the changes by dismissal and re-engagement if employees don't consent, or the offer is an alternative to making redundancies, then the collective consultation obligations may be triggered (if 20 or more dismissals are proposed at one establishment within 90 days). Information on collective consultation is at Redundancy: Consultation but you should contact us to discuss your obligations and an appropriate process.

Lay-off: If you have a contractual right to 'lay off', you could rely on this to enforce a period of non-work with no pay without having to get employee consent. Lay off occurs when an employee is not provided with any work and so receives no pay for a week. Employees with two years' service can resign and claim statutory redundancy pay after being on lay-off or short-time working for four consecutive weeks, or six weeks in a rolling period of 13 weeks. Read more at Lay-off and Short-time working

Making redundancies

Despite the significant costs involved in making redundancies (in terms of redundancy and notice payments) it might be the only option for some businesses. As explained in the FAQs below, employees on furlough can be made redundant. It might, therefore, be appropriate for you to carry out consultation during furlough and make redundancies when the Scheme ends. If the collective consultation obligations apply (Redundancy: Consultation), factor this into your timeline.

Detailed guidance and templates are available at the Workbox pages on Redundancy.  ACAS, CBI and TUC have issued a joint statement on handling redundancies in the time of COVID-19. Also, see below in relation to:

  • Can we make furloughed employees redundant?
  • Can we consult with furloughed employees?
  • Will the exception to collective consultation which is permitted for 'special circumstances' apply to COVID-19?
  • How can we elect representatives for collective redundancy consultation?
  • Are representatives involved in collective consultation 'working' while on furlough?
  • What statutory redundancy pay are furloughed employees entitled to?
  • Can notice pay and redundancy pay be claimed under the Scheme

Other options include:

Contact us to discuss any of these options in further detail.

Insolvency: If this is a risk, please contact us and we will put you in touch with our Restructuring and Advisory team.

The Job Support Scheme

The UK Government has announced that a Job Support Scheme will be available for a period of 6 months from 1st November 2020, following the end of the Coronavirus Job Retention Scheme, until April 2021. The new scheme will give employers the option to keep employees in employment on shorter hours, as opposed to making redundancies. As claims can only be made in respect of employees who are working, it's aimed only at those businesses who have jobs that are viable. 

To be eligible employees must:

  • be on an employer's PAYE payroll on or before 23 September 2020.This means a Real Time Information submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.
  • work a minimum of 33% of their normal hours (for the first three months of the Job Support Scheme – after which the threshold may be higher) and be paid their contracted wages for that work as usual by their employer.

For all remaining hours not worked, the Government and the employer will each pay one third of the employee's usual pay due for those hours. The Government grant will be capped at £697.92 per month.

So, an employee working 33% of their normal hours would receive 77% of their usual pay (the employer covering 55% and the Government 22%, subject to the cap). Or, to take another example, someone on £2,000 a month, working 50% of their hours would get £1,000 normal pay plus £333 extra in respect of the non-working hours from their employer and £333 from the Government.

The Government grant will not cover Class 1 employer NICs or pension contributions - these remain payable by the employer in respect of the hours not worked.

Previously furloughed employees' normal wages will be based on their usual pre-furlough pay, as opposed to the amount they received whilst on furlough.

Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee.

Employees will be able to 'cycle on and off ' the Job Support Scheme – depending on business requirements. In addition, they don't need to work the same short-time working arrangement each month, although each arrangement must be for a minimum seven day period. It is expected that employers will not be permitted to top up employees’ wages above the two-thirds contribution at their own expense.

A similar scheme for the self-employed will also be introduced.

Which employers can claim the grant?

The Job Support Scheme can be claimed by all UK employers who have a UK bank account and UK PAYE schemes. However, in order for large businesses to be eligible (typically those with over 250 employees, although we await clarification on this), they will have to meet a financial assessment test - the grant will only be available if their turnover is lower now than prior to them experiencing difficulties as a result of COVID-19. Small and medium sized businesses will not be subject to the financial assessment test.  

It is expected that large employers will not be making capital distributions, such as dividend payments or share buybacks, whilst they are accessing the grant under the new scheme. 

You will be able to claim under the new scheme even if you have not previously furloughed staff under the Coronavirus Job Retention Scheme. Further, the Job Support Scheme can be claimed in addition to the Job Retention Bonus if you keep on furloughed employees on shorter hours, provided the eligibility criteria for the bonus are met, see below

Agreeing new short-time working arrangements

You will need to agree any new short time working arrangements with employees in writing prior to implementing any changes. This agreement must be made available to HMRC on request.

HMRC will contact employees directly with full details of the claim being made on their behalf.

When will grant payments be made?

Grant payments will be made monthly in arrears, as reimbursement for the Government's contribution to employee wage costs.

As grants will be payable in arrears, you can only submit a claim in respect of a given pay period, after payment to the employee has been made and the payment has been reported to HMRC via a Real Time Information return.

How can we make a claim?  

You will be able to make a claim online from December 2020 on the GOV.UK website. We expect further details to follow on the process involved and the information you will need to provide.

Grants can only be used as reimbursement for wage costs actually incurred. HMRC will check claims and if a claim is found to be fraudulent or based on incorrect information then payments may be withheld or paid back.

Further information

A Job Support Scheme factsheet has been produced by the Government which summarises the main terms of the new scheme and provides some examples. We will update this page with more details on the new scheme when they become available.

In the meantime, please contact us if you would like to discuss how the new scheme might impact your business plans.

How can we claim the Job Retention Bonus?

The Government has introduced a 'Job Retention Bonus' as an incentive for employers to keep on furloughed employees after the Scheme ends on 31 October 2020. The bonus will be a taxable one-off payment of £1,000 payable to employers for every employee who they previously claimed for under the Scheme and who remains continuously employed through to the end of January 2021. Unlike other grants under the Scheme, this bonus does not require to be passed on to the employee.

To be eligible for the bonus employees must earn above £520 per month on average between the end of the Scheme and the end of January 2021. You will be able to claim the Job Retention Bonus after you have filed PAYE for January. Bonus payments will be made from February 2021.

Guidance published by the UK Government contains further information in relation to:

  • whether you are eligible for the bonus;
  • which employees you can claim the bonus for, and;
  • how to claim the bonus 
Which employers are eligible?

All employers are eligible. You can claim a Job Retention Bonus for any employees that were eligible for the Coronavirus Job Retention Scheme and in respect of whom you have, at some point, claimed a grant for. However, where a claim for an employee was incorrectly made, a Job Retention Bonus will not be payable.

HMRC will withhold payment of the Job Retention Bonus where it believes there is a risk that claims may have been fraudulently claimed or inflated, until the enquiry is completed.

You will not be eligible for the Job Retention Bonus in respect of any employee transferred under TUPE or under the business succession rules after 31 October 2020.

Which employees can a claim be made in respect of?

All types of employee are eligible for a Job Retention Bonus including office holders, company directors, agency workers, and those on fixed-term contracts.

You will be able to claim for employees who:

  • were furloughed and had a Coronavirus Job Retention Scheme claim submitted for them that meets all relevant eligibility criteria;
  • have been continuously employed from the time of the most recent claim for that employee until at least 31 January 2021;
  • have been paid an average of at least £520 a month between 1 November 2020 and 31 January 2021 (a total of at least £1,560 across the 3 months). The employee does not have to be paid £520 in each month, but must have received some earnings in each of the three calendar months that have been paid and reported to HMRC via RTI;
  • have up-to-date RTI records for the period to the end of January;
  • are not serving a contractual or statutory notice period, that started before 1 February 2021 .

These criteria must be met regardless of the frequency of the employee’s pay periods, their hours worked and rate of pay.

What earnings can be included in the £520 a month average minimum earnings threshold?

Only earnings recorded through HMRC RTI records can count towards the £520 a month average minimum earnings threshold.

How can we make claim?

From February 2021, you will be able to claim the Job Retention Bonus through GOV.UK. More detail about this process will be published in guidance by the end of September 2020.

Health and safety for workplaces: what do we need to consider?

This is discussed on our separate Workbox page: Coronavirus: Workplace Health and Safety.

Do we need to consult on health and safety issues?

Yes, there is a duty to consult about changes in work practices in respect of health and safety for when people return to work - depending on your circumstances, consultation should be with either with trade union safety representatives, employee appointed safety representatives, or directly with employees. Contact us for more information or go to the page on Health & Safety: Consultation.

Can we issue notice of termination during furlough?

Yes. You can issue notice of termination during furlough. You can continue to claim via the Scheme whilst an employee is serving a statutory or contractual notice period. However, you cannot claim under the Scheme for payments in lieu of notice, or redundancy payments.

If notice is served during furlough, how do we calculate notice pay?

If an employee is on 'flexible furlough' then, for any time they are actually working during their notice period, you should pay them at their normal rate of pay.

If you are paying in lieu of notice, check the terms of the contract, which might set out how you should calculate this payment. You cannot claim back payments in lieu of notice from the furlough Scheme.

Otherwise, for periods during which an employee is on furlough and serving their notice:

  • If you agreed to top-up their wages to 100% of salary during furlough, you may need to continue with this during their notice period – check the terms of your furlough agreement.
  • If: (i) you did not agree to 'top-up' i.e. you have been paying the 'furlough rate' (80% of reference salary, subject to the statutory cap) and (ii) the contractual notice you must give to terminate employment is at least one week longer than the statutory minimum notice you must give, then you can continue paying at the furlough rate during the notice period. This stems from a notoriously odd piece of law, and applies regardless of who actually gives notice, and how much notice is actually given.
  • If the contractual notice you must give to terminate employment is less than one week longer than the statutory minimum notice you must give, then you will need to top-up an employee's furlough pay to their 'normal' rate of pay for either (i) one week, if the employee gave you notice; or (ii) the duration of statutory minimum notice you had to give the employee, if you issued the notice. How you calculate 'normal' pay depends on whether an employee has 'normal working hours' – contact us if you need more detail on this - but from 31 July 2020 this calculation must be based on the 'normal' (i.e. non-furloughed) rate of pay. For any additional contractual notice period, you can reduce pay back to the furlough rate. 

You may prefer the administratively simpler option of paying all employees at 100% of salary during their notice period - the cost implications of this option will depend on how many employees are being made redundant, and their rates of pay. 

Can notice pay and redundancy pay be claimed under the Scheme?

Payments made to employees while on notice can be reimbursed under the Scheme (as discussed above). However, you are not able to claim for payments in lieu of notice or redundancy payments.

Can we make furloughed employees redundant?

Yes, although the Scheme is intended to keep people in employment, the Guidance specifically states that employees can be made redundant whilst on furlough. You might conclude during the furlough period that you need to make redundancies for the long-term survival of the business.

The normal rules on redundancy would apply so that employees with at least two years' service would be entitled to a statutory redundancy payment (see What statutory redundancy pay are furloughed employees entitled to?). They could also claim unfair dismissal if, for example, there had been an unfair selection process; a failure to consult; or a failure to consider alternatives to dismissal.

If there is a proposal to make 20 or more redundancies at one establishment within a 90-day period there would be an obligation to consult collectively: see below. The fact that consultation would be required for 30 / 45 days (and notice of termination can’t expire until after the consultation period has ended) should be factored into your redundancy timeline. If you don't already have trade union or elected employee representatives in place, think about electing some now - so that you are well placed to start consultation if and when you propose to make redundancies.

If you are proposing to make redundancies before the Scheme comes to an end, think about whether it would be reasonable to maintain employees on furlough as an alternative to dismissal. See: Does the furlough option mean that redundancies are potentially unfair just now? and contact us if there is a challenge from an employee who is suggesting that they should not be made redundant because furlough is still running. 

Does the furlough option mean that redundancies are potentially unfair just now?

If you are considering redundancies just now, think about whether the furlough scheme is a possible alternative for your business. If you are proposing to dismiss an employee as redundant, be prepared to consider why that route was reasonable (e.g. because you aren't financially able to meet the employer contributions required from August onwards) rather than placing/keeping the employee on furlough - consider furlough as an alternative to redundancy dismissal before arriving at the decision to dismiss. Also, see below on pooling furloughed and non-furloughed employees for redundancy selection.

Document both the business case and reasons for the timings, if proposing to make employees redundant prior to the closure of the furlough scheme in October.

Do we need to pool furloughed and non-furloughed employees together for redundancy selection?

Where only part of your workforce has been furloughed, it is likely to be unfair to only select employees for redundancy from the group which have been furloughed. Selection for furlough may not have been sufficiently robust (i.e. not based on the same type of objective criteria which are expected in a redundancy exercise). If employees volunteered for furlough, it may not have been made clear at the time that volunteering had implications for future redundancies. Therefore, the fairest approach is to identify redundancy selection pools from across the whole workforce, not just from the furloughed group of employees.

Can we carry out redundancy consultations with furloughed employees?

Yes. If you are going to consult with furloughed employees, advance plan for the practical issues:

  • Video calls will be better than telephone calls where possible: can you set up conference calls / Skype / Zoom to facilitate discussions?
  • Think about issuing guidance on ensuring that meetings are confidential; and encrypting infromation being sent to personal email addresses.
  • Is all the information required for selection / redundancy payment calculations readily accessible?
  • The statutory right to be accompanied does not apply to redundancy consultation meetings but is often offered in the interests of fairness (and should be offered at the final dismissal meeting). If you want to allow this, it should still be possible in a virtual consultation exercise by allowing companions to join the phone or video call. You could, for example, allow break out rooms via Zoom.
  • Explain that a notetaker will be present and that the call should not be recorded.
  • If there is a proposal to make 20 or more redundancies at one establishment within a 90-day period there would be an obligation to consult collectively: see below and at Redundancy: Consultation. If you need to elect employee representatives, see Electing Employee Representatives, which provides a step-by-step guide, including information on voting for those who are not in the workplace.

Will the 'special circumstances' exception to collective consultation apply?

If you are proposing to dismiss as redundant 20 or more employees at one establishment within 90 days, you must consult appropriate representatives of affected employees (for 45 days before the first dismissal takes effect if 100 or more redundancies are proposed within a period of 90 days; 30 days if there are between 20 and 99 proposed redundancies within the relevant period). A failure to do so can lead to a protective award of up to 90 days' gross pay per employee.

There is a limited exception to the obligation to collectively consult where there are 'special circumstances' which render it not reasonably practicable to comply. Whether this is engaged will depend on the particular facts and circumstances. Insolvency is not in itself necessarily a special circumstance, however, a 'sudden disaster' (physical or financial) can be and it may well be that the impact of coronavirus would fall into this category (certainly at the start of the outbreak before the Coronavirus Job Retention Scheme was introduced, and particularly for businesses which were closed with immediate effect). Advice should be sought on this: contact us.

Even if the exception applies, you should take steps to comply with the collective consultation obligations as far as possible (e.g. by consulting for a shorter period) – the fact that there are 'special circumstances' does not mean that the requirements can be ignored completely. For more information go to: Redundancy Collective Consultation.

How can we elect representatives for collective redundancy consultation?

If collective redundancy consultation is triggered, you must consult with appropriate representatives of the affected employees - for who should be the 'appropriate representatives' see Redundancy: Consultation - who do we need to collectively consult with?

If you need to elect employee representatives, see Electing Employee Representatives, which provides a step-by-step guide, including information on voting for those who are not in the workplace.

Are representatives involved in collective consultation 'working' while on furlough?

The guidance on the Scheme now confirms that acting as an employee representative will not break furlough.

Furloughed employees who are union or non-union representatives are able to carry out duties and activities for the purpose of individual or collective representation of employees or other workers, provided that in doing so, they do not provide services or generate revenue for, or on behalf, of your organisation or any linked or associated organisation. This means that they will be able to undertake duties as a representative during collective redundancy consultation.

There is nothing to suggest that you would need to pay employee representatives anything in addition to their furlough pay.

How will employee representatives carry out their role remotely?

There are a number of issues to consider: 

  • How will you provide the required statutory information in writing to the representatives (What information do we need to give the employee representatives?)? Strictly speaking this requires to be delivered in person or by post, but in practice, for now, email communications are likely to be acceptable.
  • You have to provide representatives with 'appropriate facilities' (see rights of representatives). In the context of remote employees this would mean providing the appropriate technology to allow effective participation. Check that the techology is secure and GDPR compliant.
  • Consider issuing protocols for consultation meetings, and taking minutes.
  • Think about how the representatives will be given access to the employees (see rights of representatives), and how this might impact on the timing of the process. There will be data protection issues around sharing home addresses / personal email addresses. In practice it might appropriate for you to use the organisation's technology and set up the consultation meetings betwen the representatives and the employees.
  • Contact us to discuss any of the above in more detail.

Furloughed employees: how do we calculate their statutory redundancy pay?

Redundant employees with at least 2 years' continuous service are entitled to a statutory redundancy payment. This is calculated on the basis of age, length of service and a 'week's pay'. How you calculate a week's pay depends on whether an employee has normal working hours (see How do we calculate a statutory redundancy payment?) but from 31 July 2020 this calculation must be based on the 'normal' (i.e. non-furloughed) rate of pay. A 'week's pay' is subject to a statutory cap.

Your employees may also be entitled to an additional contractual redundancy payment.

Can notice pay and redundancy pay be claimed under the Scheme?

Payments made to employees while on notice can be reimbursed under the Scheme (as discussed above). However, you are not able to claim for payments in lieu of notice or redundancy payments.

How should we handle annual leave after employees return to work?

 There are a number of potential issues around the handling of annual leave after employees return to work:

Contact us to discuss any of these issues in more detail.