Can an employee on family related leave be furloughed?

As the pandemic progresses, more and more people will be forced to self-isolate and, inevitably, both tenants and staff will be affected. Put plans in place to mitigate the impact that this may have, particularly regarding staff shortages. The most important focus here should be communication.

The Covid-19 outbreak will affect the pace of everyday life and delays will be expected. Rather than allowing the pandemic to take over completely, it is important to maintain open communication with tenants as much as possible and inform them of any front-facing challenges that you may face.

The Protocol does envisage that delays may occur and allows for some degree of flexibility. Whilst all efforts should be made to conduct inspections where practical and possible, it should be expected by all parties that timescales will be extended during this crisis. It is fundamental, however, that all changes made to standard practice are communicated and explained to tenants to manage expectations.

Similar flexibility should be afforded to tenants. As households are required to isolate it will not always be possible to gain access to properties as would usually be expected and required. Likewise, vulnerable people will wish to protect themselves and their families and may refuse access on this basis. During this period, a degree of understanding must be exercised and concessions made.

Inspections may be delayed if anyone in the household has  symptoms. A questionnaire should be prepared for those visiting properties to assess so far as possible the risk; Personal Protective Equipment should be issued to those visiting, and government guidelines followed.

Lay off is a temporary measure where an employee is required not to do any work by their employer in any given week and does not receive any salary for that period. This is sometimes used interchangeably to refer to redundancies; however, this is not correct and lay-off is different to redundancy.

Lay-off may be very useful to achieve short or medium-term cost savings in response to a temporary reduction in demand for products or services. Whether the employer has the right to implement lay-offs and how swiftly they can expect to be able to do so will depend on whether the relevant contracts of employment have specific provisions which deal with lay-off.

Short time working is where an employer temporarily reduces an employee’s working hours, with a corresponding reduction in their pay to less than 50% of their usual salary. This could be through reducing the number of working days, reducing the length of working days or a combination of both.

Short time working provides the employer with the ability to reduce staffing costs whilst providing flexibility in deciding the form of working pattern. As with lay-off, whether the employer has the right to unilaterally impose short-time working and how swiftly they can expect to practically implement this will depend on whether the relevant contracts of employment contain a short time working clause.

Where there is a contractual right to lay off or impose short time working: There is no strict process which has to be followed. We would advise transparent communication and confirmation in writing.

Where there is no contractual right: Imposing these options without a contractual right to do so will be a fundamental breach of the employee’s contract of employment. In these circumstances the employee’s options are: accept the situation and keep working; claim for lost pay; resign and claim constructive dismissal. The best approach for employers in these circumstances is to instead seek to agree lay-off or short-time working arrangements with employees.

Selecting employees for lay-off or short time working: There is no prescribed method for selecting which employees are to be laid-off or placed on short-time working, provided that the employee cannot argue that the method of selection is discriminatory in some way. We would advise selection based on objective business reasons.

Entitlement to pay during lay-off or short time working: Employees must be paid for the time they work. Additionally, while on lay off or short time working, an employee is entitled to receive statutory guarantee pay for the first 5 workless days in any 3-month period. The maximum statutory guarantee pay in any 3-month period is £150 (i.e. £30 for each workless day up to a maximum of 5).

Entitlement to statutory redundancy pay: Once employees have been on lay-off or on short-time working for 4 consecutive weeks or for a combined total of 6 weeks during any 13-week period, they may seek to claim a statutory redundancy payment (provided that they have two years’ service). There is a prescriptive process for this – please seek advice.

The Flexible Furlough Scheme was introduced from 1 July 2020 and is due to come to an end on 30 September 2021.

These periods are often mistakenly referred to as minimum lengths of consultation (especially by Trade Unions). That is not correct. Consultation can commence, conclude and notices of dismissal be issued within the 30 and 45 day periods. The expiry of the notice would just have to be outside of those restricted periods.

This is something which is certainly on the Government’s radar as there is currently a Bill being heard in Parliament about making MHFAs a legal requirement for workplaces. It is still in the very early stages and therefore it is not clear at this stage what the outcome will be. What is clear is that this is an area which is being taken very seriously and it would not be surprising if measures were put in place regarding MHFAs in the workplace.