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Coronavirus (COVID-19) – Furlough

Last updated 22 September 2020.

*PLEASE FOLLOW ANY GOVERNMENT GUIDANCE OR GUIDANCE SPECIFIC TO YOUR LOCAL AREA AS GUIDANCE ON THE CORONAVIRUS (COVID-19) IS CHANGING DAILY*

Furlough deadline:  In almost all circumstances, you can now only be furloughed if you were already on furlough on or at any point before 10 June. 

This article covers FAQs about the Coronavirus Job Retention Scheme (furlough). If you are currently on furlough but have been asked to go back to work, see our Return to work and health and safety page.

You might also want to look at our coronavirus pages on:

This page is only relevant for employees and workers. If you are self-employed, have a look at our page on financial support instead.

What is furlough? Who is it for?

What is the Coronavirus Job Retention Scheme? What is ‘furlough’?

The Coronavirus Job Retention Scheme is a temporary scheme open to all UK employers and will be running, in some capacity, until the end of October. It is designed to support employers whose operations have been affected by the health, social and economic emergency in the UK caused by the coronavirus pandemic. Initially, the scheme was only available to people whose work was no longer being carried out as a result of coronavirus, but it has since been extended, and you can now be furloughed if you are unable to work because of childcare and caring reasons.

In most cases, you must have already been furloughed by 10 June to be eligible (there are some exceptions to this deadline).

From 1 July, furloughed employees can return to work part-time, and their employers can continue to claim for any of their hours not worked. If you are unable to work, or your employer does not have work for you to do, your employer can continue to claim the grant for your full hours under the existing scheme. See the section on flexible furlough below for more information.

If you are furloughed, this means your employer can claim the following sums over the next few months:

  • From 1 – 31 August: 80% of your wages, up to £2,500 a month; then
  • From 1 – 30 September: 70% of your wages, up to £2,187.50 a month; then
  • From 1 – 31 October: 60% of your wages, up to £1,875 a month.

Please note that, although the amount your employer can claim will decrease, you must still receive a least 80% of your wages, up to a wage cap of £2,500 a month. The only difference is that your employer will need to pay a percentage of your wages, which they cannot claim back from the government.

Your employer can choose to top up the extra percentage of your salary so that you receive 100%, but they do not have to. See the question below, ‘Am I entitled to receive 100% of my pay while I’m on furlough?’

While you are on furlough, you remain on your employers payroll, but you cannot carry out any further work for them. Employees that have been ‘furloughed’ have the same rights as they did previously. That includes maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments.

If you agree with your employer that you will be furloughed, make sure to get confirmation of this in writing. Government guidance for employers says that they must confirm with you in writing that you have been furloughed. To avoid any confusion arising in the future, it would be ideal if you could agree, in writing:

  1. that your employer will apply to HMRC on your behalf for the Coronavirus Job Retention Scheme;
  2. when your employer will apply to the scheme for you;
  3. how long you will be furloughed for (this can be extended by agreement); and
  4. the exact amount of money that your employer will be applying to the government for on your behalf (i.e. how are they calculating your ‘wages’? This point is especially important if your income varies from month to month).

The written agreement does not have to be very formal – you can confirm this via email, text, another messaging service, or more formally by a variation to your contract. It’s just important that it is written down so you can more easily rely on this information in the future if any disagreement arises.

You can find more information on the government guidance for employees and guidance for employers.

Can I go on furlough for the first time after 10 June?

In almost all cases, no.

Most people can only go on furlough if they were already furloughed (for a three week period of time) before or on 10 June. But there is an exception to the furlough deadline for those returning from family-related leave.

If you are returning from family-related leave: parents returning from family-related leave (maternity, adoption, paternity, shared parental and parental bereavement leave) can be furloughed after 10 June, even if you have not been furloughed before. But you can only be furloughed if:

  • your family-related leave began before 10 June and ended after 10 June,
  • your employer had already furloughed other staff members before 10 June,
  • you were on your employer’s payroll on or before 19 March (i.e., if you were included on an RTI submission on or before 19 March).

The government guidance was updated on 12 June to reflect this change.

If you were furloughed on or at any point before 10 June for a three week period and you have returned to work, you can go back on furlough.

If you were not furloughed at any point before 10 June for a three week period and you are not eligible for furlough, please visit our general rights page for more information on taking time off work for childcare and caring reasons.

How will the furlough scheme change from 1 July?

On 12 June, the government announced changes to the furlough scheme. Most of these changes only come into effect on 1 July or later. Broadly, the changes to the scheme that will be relevant to working parents and carers are:

  • You can only be furloughed if you were furloughed on or at any point before 10 June (unless you are returning from family-related leave).
  • From 1 July, you can be furloughed part-time and return to work part-time. Your employer will have to pay you for the time you are at work and can reclaim your furlough wages for the time that you are off work. See the section on flexible furlough below for more information.
  • The number of employees that can be furloughed at any time from 1 July is the maximum number of employees previously furloughed at any one point in time, plus anyone returning from family-related leave. See the FAQ below ‘Is there a restriction on how many employees my employer can furlough at once?‘.
  • From 1 August, your employer will need to contribute to some of your furlough wages. There is more information on these contributions on the government’s website.

You can access the employer guidance and employee guidance on furlough for more information.

Is there a restriction on how many employees my employer can furlough at once?

From 1 July, your employer can only furlough the maximum number of employees they furloughed in any previous single claim ending 30 June. For example, if they claimed for 13 employees in March, 12 employees in April, 13 employees in May and 7 employees in June, they can only furlough a maximum of 13 employees going forward in one claim period.

However, this number does not include anyone returning from any form of parental leave (i.e. maternity, shared parental, adoption, paternity or parental bereavement leave). So, if there are 2 employees returning from family leave who are eligible for furlough, the maximum number of employees that can be furloughed is 15 (the 13 already furloughed in a single claim, and the 2 returning from family-related leave).

I am an agency worker, can I benefit from the furlough scheme?

Yes, if you are an agency worker on PAYE then you can be furloughed by the agency, so long as you are not doing any work for them while you are on furlough.

Note that in almost all cases, the latest you could be put on furlough for the first time is 10 June (though there are some exceptions to this deadline). 

Can I ask my employer to put me on furlough if I cannot work because of childcare or other caring commitments?

Yes, you can – but note that in almost all cases, the latest you could be put on furlough for the first time is 10 June (although there are some exceptions to this deadline). The government guidance says that you can be furloughed if you have to stay at home because you or someone you care for is shielding. However, shielding is due to be paused in most of England, Scotland and Northern Ireland from 1 August, and in Wales from 16 August. Therefore, it may be less likely that your employer is willing to furlough you for that reason.

If you are already on furlough, the pause on shielding does not automatically mean your employer will end your furlough. Your employer can continue, but from 1 August, they will have to begin contributing to the Coronavirus Job Retention Scheme, so this may put financial pressure on your employer to bring you back to work when shielding ends. It could be that flexible furlough is a better option for you and your employer.

It is important to keep up-to-date with the separate advice on shielding for England, Scotland, Wales and Northern Ireland, and for your local area. Details of local restrictions for England can be found here.

It may be possible for you to work from home instead of going on furlough. If it is, then you should discuss with your employer if you can do so. If you are shielding, it may be because of an underlying health condition which is considered a disability. If this is the case, then you can ask your employer to make reasonable adjustments to your work to allow you to work from home.

Statutory Sick Pay if you are shielding: If you have been told to shield because you are classed as ‘extremely vulnerable’ and shielding is not paused where you live, you could be entitled to Statutory Sick Pay (SSP) for the period for which you are unable to work. It only applies to you if you are shielding yourself.

When shielding is paused, SSP will no longer be available to people solely on the basis that they are shielding. If you are still unable to work because you have coronavirus, you may still be eligible for SSP, but you will need an ‘isolation note’.

If your employer refuses to keep you on furlough or put you back on furlough, you may be able to argue that they are discriminating against you – see the question on discrimination below.

If your employer is asking you to return to work and  you believe that your employer hasn’t made your workplace Covid-secure, it could be a breach of your contract (specifically the duty of mutual trust and confidence) if your employer forces you to come back to work. Read our page on health & safety and returning to work for more information.

If you are being forced to return to work in conditions that you believe are unsafe, it may be worth checking whether you have access to legal services via Trade Union membership or legal expenses insurance (often through your home contents insurance).

You may also be able to take some other form of leave. See our page on employment rights or our page for carers (or those living with someone who is shielding) for more information on taking time off work.

Can I ask my employer to put me on furlough if I cannot work because I am shielding (or need to stay home with someone who is shielding)?

Yes, you can – but note that in almost all cases, the latest you could be put on furlough for the first time is 10 June (there are some exceptions to this deadline).  The government guidance has made it clear that you can be furloughed if you have to stay at home because you are shielding (or need to stay home with someone who is shielding) and cannot work as a result.

Note that shielding is due to be paused in most of England, Scotland and Northern Ireland from 1 August, and in Wales from 16 August. See the separate advice for England, Scotland, Wales and Northern Ireland.

It may be possible for you to work from home instead of going on furlough. If it is, then you should discuss with your employer if you can do so. If you are shielding, it may be because of an underlying health condition which is considered a disability. If this is the case, then you can ask your employer to make reasonable adjustments to your work to allow you to work from home.

If you were on furlough for a reason that is unrelated to the fact that you are shielding (e.g. your employer did not have work for you), you can ask your employer to stay on furlough for shielding reasons. But do remember that your employer can refuse to furlough you. It is important to make clear to your employer that keeping you on furlough or putting you back on furlough will not have a detrimental impact on them, as they can continue to claim a percentage of your wages under the Scheme.. They can top up your wages, but they do not have to.

Statutory Sick Pay if you are shielding: if you have been told to shield because you are classed as ‘extremely vulnerable’, you are entitled to Statutory Sick Pay (SSP) for the period for which you are unable to work. The government’s guidance on who is ‘extremely vulnerable’ can be found here. This does not apply to you if you live with or care for someone who is shielding. It only applies to you if you are shielding yourself.

When shielding is paused, SSP will no longer be available to people solely on the basis that they are shielding. If you are still unable to work because you have Coronavirus, you may still be eligible for SSP, but you will need an ‘isolation note’.

If your employer refuses to keep you on furlough or put you back on furlough, you may be able to argue that they are discriminating against you – see the question on discrimination below.

If your employer is asking you to return to work, this does not mean you have to go back to work. If you (or someone you live with) is extremely vulnerable to coronavirus, it could be a breach of your contract (specifically the duty of mutual trust and confidence) if your employer forces you to come back to work. Read our page on health & safety and returning to work for more information.

You may also be able to take some other form of leave. See our page on employment rights or our page for carers (or those living with someone who is shielding) for more information on taking time off work.

During furlough

Can I still work for my employer while I’m on furlough?

From 1 July, you can return to work part-time while you are on furlough.

If your employer asks you to do this, they must pay you your wages in full for the hours worked. Your employer will then pay 80% of your wages for any of your hours you do not work. See the section on flexible furlough below for more information.

HMRC has set up a whistleblowing service for workers whose employers are making them work when they are officially on furlough. The whistleblowing scheme allows you to notify HMRC that your employer is breaching the scheme by making you work when you are supposed to be furloughed. You can contact HMRC on their Fraud Reporting line on 0800 788 887 or via their online form. You can also contact Protect, the whistleblowing charity, for advice. There is more information on how to contact them on their website here.

Your employer can also ask you to complete training while you are furloughed. If they do, then they should pay you at least the national minimum wage for the time you are doing the training, even if this means they have to pay you more than the 80% that will be reimbursed by the government.

Can I work for another employer while I am on furlough from my main employer?

Yes, you can work for another employer if your contract allows you to.

The government’s guidance says that if you are put on furlough, you can work for another employer during furlough, but only if your contract allows you to (some employment contracts have exclusivity clause which mean you cannot work for another employer).

Working for this other employer will not affect the grant that the employer who has furloughed you can claim under the scheme.

You are not allowed to work while on furlough for an employer or company that is linked to your employer in any way. The work you carry out for the other employer has to be completely separate to the work you normally do.

Bear in mind that you will need to be able to return to work for the employer that has placed you on furlough if they decide to stop furloughing you (or, from 1 July, if they want to put you on flexible furlough). You must also be able to undertake any training your employer requires you to do while on furlough.

Can I take annual leave while I’m on furlough?

Yes, the government’s guidance on furlough for employees says that you can take annual leave while you are on furlough.

Your employer will need to top up your salary during this time to ensure you are being paid your full salary while you are on annual leave. This means they will need to pay a top up to the furlough grant provided by the government.

Bear in mind that your employer can restrict when leave is taken if there is a business need.

Will my holidays continue to accrue while I’m on furlough?

Yes, while you are on furlough you continue to accrue annual leave as normal.

You can agree with your employer to vary holiday pay entitlement as part of your furlough agreement with them, but your employer should not lower your holiday pay to below 5.6 weeks (pro rata) per year. This is the minimum amount of paid annual leave set out in the Working Time Regulations.

The government announced on 27 March 2020 that where it has not been reasonably practicable for employees to take all of their annual leave due to coronavirus, they can carry up to four weeks of leave over into the next two leave years.

Can my employer make me take holiday while I’m on furlough?

Yes, according to government guidance (this applies in England, Scotland and Wales. See here for the position in Northern Ireland). Your employer can require you to take holiday while you are on furlough.

Your employer has to give you advance notice if they require you to take annual leave. The notice period has to be twice as long as the holiday the employer requires you to take (so if they want you to take a week off, they must give you two weeks’ notice). 

Taking holiday will not disrupt your period of furlough.

The government guidance says your employer should consider whether any restrictions you are under might prevent you from resting, relaxing and enjoying leisure time – this is the purpose of holiday. Needing to socially distance from others, or self-isolate, or teach your children while the schools are closed, may prevent you from doing this while you are off work.

Your employer must pay you your full wages while you are taking holiday, even if you have agreed to reduced pay as part of your furlough agreement.

If your employer asks you to take holiday when you don’t want to, you should explain your reasons to them, and ask to save your holiday for another time. You should set out why, in your current circumstances, any holiday taken would not allow you to rest, relax and enjoy leisure time. You could point out to them that the government is allowing employees to carry over up to four weeks of leave into the next two years, because of coronavirus, to give businesses more flexibility. Any holiday which you don’t take now can be taken in the next two leave years.

I am currently on furlough, but my employer has asked me to come back to work. Do I have to return to work?

We have created a separate page on returning to work from furlough, including your right to refuse to return to work for childcare, caring, or health and safety reasons.

Calculating furlough pay

How should my furlough pay be calculated?

Your employer can reclaim 80% of your normal salary back from the government (up to £2,500 per month) while you are on furlough, until the end of August. From 1 September until the end of October, the amount your employer can reclaim from the government will reduce, however you should continue to receive 80% of your normal salary. You may be eligible for your full salary, depending on your circumstances. Your normal salary should be based on your last pay day before 19 March 2020.

If your pay varies week by week, your salary will be calculated differently. See the question on variable pay for more guidance.

Am I entitled to receive 100% of my pay while I’m on furlough?

If you are taking holidays or doing training for your employer during your furlough period, you are entitled to 100% pay for these periods, even if you have agreed to reduced pay as part of your furlough agreement.

If your employer has asked to put you on furlough, but you are “ready, willing, and able” to work, you have a right to your full contractual pay. Until 31 August 2020, your employer can only recover 80% of your wages (up to £2,500 per month) through the furlough scheme (this recovery percentage will reduce each month throughout the scheme). But the scheme does not change existing employment law. If your employer asks you to go on furlough, you do not have to agree to a reduction in pay – just as you do not have to agree to furlough. If you refuse furlough, your employer may explain that they need to dismiss you or make you redundant. In this situation, it may make more sense to accept 80% of your salary to avoid redundancy. But if your employer wants to make staff redundant, they must follow normal redundancy rules. There will have to be a genuine redundancy situation, and they must follow a fair selection criteria. See our page on redundancy during coronavirus for more information.

If you have asked your employer to put you on furlough because:

  • you cannot continue working for childcare or caring reasons; or
  • you cannot continue working because you are shielding or someone in your household is shielding,

then it will be more difficult for you to argue that you should be paid your full pay. This is because being entitled to full pay depends on being “ready, willing, and able” to work. If you are furloughed because you have said that you cannot continue working (for childcare, caring, or shielding reasons), you are not ready, willing or able to work. In this case, you may be more inclined to accept a 20% pay cut and receive only 80% of your pay while you are on furlough. Do remember that the national shielding requirement is due to be paused in most of England, Scotland and Northern Ireland from 1 August, and in Wales from 16 August, meaning you will no longer be required to stay home, though your employer may agree to keep you on furlough for your own health and safety.

If you know your employer is paying other members of staff their full salary, you could ask your employer to treat you fairly and in line with your other colleagues. If your employer is topping up furlough wages for some employees and not you because you are not “willing, ready, and able” to work, then you could have an argument for indirect discrimination:

  • If you are furloughed because you have caring responsibilities, and you are a woman, then you may have an argument for indirect sex discrimination. This is because women are more likely to have primary childcare and caring responsibilities, so not topping up wages for employees with caring responsibilities could have a disproportionate impact on the female workforce.
  • If you are furloughed because you are shielding, and you are classed as disabled under the Equality Act, then you could have an argument for indirect disability discrimination if your employer refuses to top up your wages just because you are not “ready, willing, and able” to work. This is because such a policy is more likely to affect the disabled workforce (since they are more likely to need to shield).

Before you argue that your employer is indirectly discriminating against you, it’s really important to bear in mind that an employer can always justify indirect discrimination if they can show that there was a genuine business need for their actions (whereas they cannot justify direct discrimination).

Remember that receiving 80% of your pay is likely to be preferable to redundancy, so you should discuss these points with your employer in an open and friendly manner.

My hours vary week by week. How should my furlough pay be calculated?

If your pay varies, your employer should claim for the higher of either:

  • the same month’s earnings from the previous year (depending on when exactly your employer puts you on furlough); or
  • your average monthly earnings from the 2019-20 tax year.

If you’ve been employed for less than a year, your employer should claim for an average of your monthly earnings since you started work.

I earn the national minimum wage (NMW), so reducing my salary to 80% means I am earning below the NMW. Can my employer do that?

Yes they can. The government have confirmed in their guidance on the Coronavirus Job Retention Scheme that because employees are only entitled to the NMW for the hours they actually work, furloughed workers may be paid below this threshold. But if your employer asks you to do some training during the time you are furloughed, then they should pay you at least the NMW for the time you are doing the training, even if this means they have to pay you more than the 80% that will be reimbursed by the government. Remember that you are not supposed to work when you are furloughed but your employer can ask you to complete training.

There are some advantages to agreeing to your employer’s proposal. It will mean you have a continued (though reduced) income. The risk is that if you refuse your employer’s proposal, you could be made redundant.

Flexible furlough

What is flexible furlough, and am I eligible?

From 1 July, you can be furloughed part time, and work for your employer part time. This is called ‘flexible furlough’. Your employer can ask you to return to work for any amount of time, and in any work pattern i.e. from 1 hour per week, up to your full contractual working hours. Remember, if your employer is asking you to change your hours, they need your written agreement.

Your employer can continue to claim the furlough grant for any hours you do not work, compared to your usual hours.

When making decisions about furlough, your employer has to make sure their decisions are fair, are not discriminatory, and comply with health and safety laws.

Do I need to have another written agreement with my employer to be flexibly furloughed?

Yes, your employer must agree the new furlough arrangement with you (or reach collective agreement with a trade union), and keep a new written agreement that confirms the new furlough arrangement. The agreement should set out:

  • how long the furlough will last,
  • how many hours / days you will work,
  • your pay for the hours you work, and
  • that your employer will claim through the furlough scheme for your furloughed hours.

Your employer has to make sure that the written agreement to flexibly furlough is consistent with employment, equality and discrimination laws.

Can I still be on full time furlough from 1 July, even though flexible furlough is an option?

Yes, your employer can choose to fully furlough or flexibly furlough all or none of its staff (subject to a maximum number of employees).

You can still be on full time furlough because you are unable to work because of caring commitments. However, unless you are returning from family-related leave after 10 June, you can only continue to be furloughed if you were on furlough for at least 3 weeks between 1 March and 30 June. See the FAQ above (‘Can I go on furlough for the first time after 10 June?‘) for more information.

How long do periods of flexible furlough have to last?

From 1 July, flexible furlough agreements can last any amount of time. You can enter into a flexible furlough agreement with your employer more than once.

Where a previously furloughed employee is furloughed before 1 July, this furlough period must be for a minimum of 3 consecutive weeks.

 

After 1 July, employers cannot make claims that cross calendar months, so the employer will need to make a separate claim for the period up to 30 June.

Although flexible furlough agreements can last any amount of time, your employer has to make a claim for a period of at least 7 calendar days.

The Coronavirus Job Retention Scheme is set to close on 31 October, so flexible furlough is expected to end at that date.

My employer is bringing half the workforce back on flexible furlough. Do they need to follow a process to decide who to bring back? What if I cannot go to work (e.g. because of childcare)?

When deciding who to bring back to work, your employer should consider which roles are needed, and whether any staff should be kept on furlough because they are unable to work (for example, because they or someone else in their household is shielding, or they have no childcare). Note that in most cases, the last date you could be furloughed for the first time was 10 June. And remember, you do not have a right to be furloughed – your employer can refuse to keep you on furlough, and ask you to return to work. See our page on return to work and health and safety for what to do in that situation.

Your employer also cannot discriminate on the basis of any protected characteristics, like sex, maternity or age. They must decide on who to ask to return to work in a fair and non-discriminatory way. There is more information on discrimination on our webpage.

Your employer may have to give you notice to ask you to come back to work. When you were furloughed, you should have entered into a written agreement with your employer to be furloughed. You should check this carefully, to see if your employer has to give you notice, and the length of this notice. If this agreement doesn’t say that your employer has to give you a certain period of notice, then your employer should give a reasonable amount of notice.

My employer has told me I have to come back to work on my normal hours, but I need to reduce my hours because of my caring responsibilities. Can I insist they put me on flexible furlough instead?

When you are asked to return to work from furlough, your hours will be those set out in your employment contract (i.e. your usual hours worked before the period of furlough).

However, if you need to reduce your hours, you can ask your employer to use flexible furlough instead. Flexible furlough is available from 1 July until the end of October, allowing you to work part-time and be furloughed for the hours you do not work. Your employer can refuse to flexibly furlough you – you do not have a right to be furloughed.

You should explain to your employer why you need to reduce your hours. You should explain what your care needs are, and why you cannot return on the proposed working pattern. You should tell them the hours you can work, so that they can consider alternative arrangements.

If you have 26 weeks’ service for your employer, you could also make a flexible working request. However, your employer has 3 months to consider this request, so it may not be an immediate solution. Note that flexible working rules are different in Northern Ireland. There is more information on requesting flexible working on our webpage on the topic. We also have a template letter for requesting flexible working during coronavirus.

If I return to work part-time on flexible furlough, will this permanently change my hours or my role?

If you return to work part-time on flexible furlough, this will not permanently change your employment contract, unless you and your employer agree that these part-time hours will be your hours when you return to work at the end of furlough. You should check the terms of any flexible furlough agreement your employer gives you carefully, to see how long the change to your hours could last.

If you would like to stay on your part-time hours after the furlough scheme closes on 31 October, you should speak to your employer about this.

Your employer may ask you to cover a different role when you return to work. If you are happy with this new role and would like to stay in it permanently, you can agree to this change to your employment contract. However, your employer can only change your role with your written agreement.

If you have 26 weeks’ service for your employer, you could also make a flexible working request. However, your employer has 3 months to consider this request, so it may not be an immediate solution. Note that flexible working rules are different in Northern Ireland. There is more information on requesting flexible working on our webpage on the topic. We also have a template letter for requesting flexible working during coronavirus.

There is more information on our advice pages here:

Can my employer rotate me between flexible furlough and full-time furlough?

There is nothing in the government guidance that stops your employer from furloughing you part-time and full-time on a rotating basis. From 1 July, your employer does not need to furlough you for at least 3 weeks to claim the grant from the government. Instead, they must make a claim for at least 7 days. The length of your furlough periods will depend on what you agree with your employer.

Discrimination and breach of contract

My employer has chosen to put some employees on furlough and not others. Is it discrimination?

It could be discrimination if you are not furloughed just because:

  • You are pregnant (pregnancy discrimination)
  • You are on maternity leave (maternity discrimination)
  • You have a disability (disability discrimination)
  • You are the carer of someone with a disability (direct disability discrimination by association)
  • Your age (age discrimination)
  • You work part-time
  • You are on a fixed term contract
  • Of your sex/gender or another protected characteristic

Also, if you have taken family-related leave (maternity leave, adoption leave, shared parental leave, paternity leave, parental leave, or time off for dependants) then you have a right not to be treated unfavourably as a result. So if you were not furloughed purely as a result of you taking or intending to take family-related leave then this may be unlawful.

If your employer fails to notify you about furlough just because you are on family-related leave or because of one of the discriminatory reasons above, this could also be a breach of your contract – more specifically, the implied breach of trust and confidence.

But bear in mind that in most cases, the furlough scheme has closed to new applicants. In almost all cases, the latest you could be put on furlough for the first time is 10 June (though there are some exceptions to this deadline). 

My employer hasn’t applied for the furlough scheme even though they agreed I could be furloughed. Is there anything I can do?

The online service for employers to claim the grant that covers furloughing costs (80% of employee wages or salary up to a maximum of £2,500 (this percentage of recovery will reduce each month throughout the scheme)) opened for applications on 20 April 2020. If your employer has agreed to furlough you and has money to be able to continue to pay you as furloughed, they should do so. They can then reclaim these payments through the Coronavirus Job Retention Scheme.

If your employer had agreed to apply to the Coronavirus Job Retention Scheme for you, and they later refuse to do so, you may be able to argue that this is a breach of your contractual agreement and potentially unlawful deduction of wages (see below).

My employer told me that I’m on furlough, but they have not paid me my furlough pay. What can I do?

Has your employer told you why they have not given you your furlough pay? Are they waiting to receive funds from HMRC? Have they received these funds, but are withholding them from you? Understanding this will help you decide what to do next.

Your first step should be to ask your employer to pay you. If they are still refusing to do so, you should consider the legal arguments below.

Check the written agreement with your employer. When you were furloughed, your employer should have confirmed this agreement in writing. You should check this written agreement carefully – it may have been a letter, or an email. In it, your employer should say that they will pay you while you are on furlough. You should point this out to your employer and attempt to resolve the matter with them first.

Even if you do not have a written agreement with your employer, they should be paying you while you are on furlough. Their failure to pay you may be a breach of contract. However, even if successful, this claim often only results in a small amount of compensation (probably not more than the financial sum you would have received had you been furloughed). Claims for breach of contract cannot be made in an Employment Tribunal unless your employment has ended. You can make a claim for breach of contract in the County Court without leaving your job, but if you do this there is a risk that you will be ordered to pay your employer’s legal fees if you lose the case.

You may also have a claim for unlawful deduction from wages. A “deduction” of wages includes late payment. You do not have to be an employee to bring a claim for unlawful deduction of wages – it also applies to workers. There is no minimum length of time you must have worked for your employer for to bring a claim for unlawful deduction from wages. Bringing a claim for unlawful deduction of wages may be preferable to bringing a claim for breach of contract because you can claim your wages at the Employment Tribunal while still working for your employer. You can only bring a claim for breach of contract at the Employment Tribunal if your employment has ended.

Your employer can argue that the deduction of wages is not unlawful if it is covered in your employment contract, or if you have agreed to the deduction in writing. You should check your employment contract carefully – does it allow your employer to reduce your pay like this? You should also make it clear in your communications with your employer that you do not consent to them withholding your furlough pay.

If you are considering bringing a claim, you must seek legal advice. There are strict time limits at the Employment Tribunal – you must bring your claim within three months of your employer failing to pay you. If your employer continues to withhold your pay, the 3-month time limit for making a claim could run from the last date on which your employer refused payment.

If you are successful in a claim for unlawful deduction from wages, the Employment Tribunal will order your employer to pay the amount you were supposed to receive. They may also award you an appropriate sum for any financial loss caused by the late payment (for example, overdraft fees).

There is more information about bringing a claim at the Employment Tribunal on our webpages.

If your employer is refusing to pay you on furlough but they are claiming your furlough pay from the government, you can contact HMRCto report this: If you have concerns about whistleblowing, you can contact Protect, a specialist whistleblowing organisation, for advice.

Useful resources

Where can I go for more help?

can We have created a number of articles on topics relating to coronavirus. These are linked at the very top of this page.

To find out what government schemes will help if your work has been affected by COVID-19, Child Poverty Action Group (CPAG) have created a decision tree to help you navigate what you may be entitled to, including whether you are eligible to be furloughed.

Links to further resources:

 

This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. 

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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