Can an employee on family related leave be furloughed?
Yes, but your claim will be limited to any enhanced contractual payments you make to employees who qualify for the relevant family related pay.
All maternity and parental rights remain in force for anyone in this category who is furloughed. However you may need to calculate average weekly pay differently if the employee was furloughed and then started family related leave on or after 25 April 2020.
Furlough pay cannot be claimed for the period that an employee is receiving Maternity Allowance. An employee can agree to accept furlough pay but they must contact Jobcentre Plus to stop their Maternity Allowance payments for this period.
It would apply if the contractor uses an intermediary to provide their services or labour and they would be deemed to be an employee or office holder for tax purposes if they were hired directly by the end user client rather than via the intermediary PSC. This would of course require an assessment of employment status for tax purposes.
Contractors who are not taxed in the UK and supply their services exclusively from outside of the UK are unaffected.
If IR35 applies, tax and NIC’s should be deducted under PAYE by the PSC. In reality this has not been happening so a major reform of the regime was due to be implemented in April 2020. The changes were postponed by one year and are due to take effect from 6 April 2021.
“Within IR35” means a contractor arrangement is caught by IR35 and the individual should be taxed as an employee.
“Outside IR35” means a contractor arrangement is not caught by IR35 and the contractor status is fine.
If such testing is regarded as a “reasonably practicable step” which has been identified as an appropriate control following a risk assessment then it is something you can do.
Although you can’t physically force someone to have something intrusive done, this is very likely to be a reasonable management instruction and therefore if someone refuses to have this done as a condition of entry into the work place then disciplinary action may follow.
Where this is something that is required of employees, employers should be letting their staff know that this is one of a number of measures that are being introduced into the workplace for their own safety. If the employer can explain, in advance of the return, why temperature checks need to be taken, what the consequences of the results will be- i.e. will they be sent home if over a certain temperature, whether this data will be stored (and if the sole purpose is to determine whether or not they are fit to attend work on a particular day then why are they being stored), and the fact that temperature checks are a requirement of entry to company premises for everyone, then there shouldn’t be significant resistance to this measure.
Large scale temperature checks have in some businesses become part of the “new normal” working environment.
The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:
- A distinct entity
- With a certain degree of permanence and stability
- Which is assigned to perform one or more tasks
- Which has a workforce, technical means and a certain organisational structure to allow it to do so
However, there is no need for it to have the following:
- Legal, economic, financial, administrative or technological autonomy
- A management which can independently effect collective redundancies
- Geographical separation from the other units and facilities of the undertaking
To respond to the crisis businesses might need to exchange information to a greater extent than they would usually. They might need to discuss capacity and to coordinate supply chains (both upstream and downstream). They might need to purchase or sell jointly to ensure vital supplies are maintained. In general agreements or collaboration which:
- Avoid a shortage, or ensure security, of supply
- Ensure a fair distribution of scarce products
- Continue essential services
- Provide new services such as food delivery to vulnerable consumers