Can employees on fixed-term contracts be furloughed?

We are working with many of our clients to progress with stopping up applications in order to divert/stop up highways and public rights of way affecting development sites. Due to lockdown restrictions the Department for Transport stalled the progress of applications because they were unable to comply with the statutory publicity requirements. We have very recently been contacted by the Department for Transport casework team who have confirmed that the stopping up/diversion applications can now be progressed. We are aware that Councils across the country are also now progressing with applications. Please contact us if you require any advice/assistance in respect of your application.

No, where employees cannot work from home, and it is safe for them to return to work, they should do so.

In making a Traffic Regulation Order (“TRO”) local authorities must follow the regulations, which include provisions relating to publicity requiring publishing the notice in a local newspaper, making the orders available for public inspection at a Council’s offices (which are likely to be closed to the public during this time) and where considered appropriate, posting the notices on the streets.

In recognition of the potential difficulties with complying with the publicity requirements, the Department for Transport has issued guidance as to how a Council may still publicise a TRO. The guidance recognises that not everyone may be able to access local newspapers online and suggests that people and organisations could be adequately informed by means of letter, leaflet drops, or local radio. In respect of making the relevant document available at the Council’s offices, the guidance suggests that notices could be placed online or outside offices with brief details and including a telephone number or email to use to request a hard copy of the documents.

While the guidance is helpful, it is important to note that it is guidance only and that the regulations have not been relaxed. Authorities will still need to demonstrate that they have satisfied all of the publicity arrangements in respect of the TRO.

The reality of these unprecedented times is that enforcement of health and safety legislation by the HSE (particularly through the criminal courts) in relation to Covid-19 is an extremely unlikely outcome.

• Certain workers will become “furloughed workers”.
• Furloughed workers cannot carry out any work for their employer while designated as furloughed, or a linked or associated organisation but they can do voluntary work as long as they are not providing services for or generating revenue for the employer or a linked or associated organisation.
• A furloughed worker can be furloughed part time and work the rest of the time.
• The furlough period begins when the employee stops work, not when agreement is reached.
• If furloughed employees are expected to do online training while furloughed they must receive the National Living Wage/National Minimum Wage for the time spent training.
• Workers must be told of and agree to this change in writing. This written agreement must be kept for five years as part of the scheme. The guidance has confirmed that collective agreement reached between an employer and a trade union on furloughing staff is acceptable for the purposes of making a claim under the scheme.
• However it should also be noted that this is a change in status and pay (if pay is not being topped up) and therefore subject to the usual employment law rules on changing terms and conditions.
• Changes to the contract must be made by agreement with the worker and the government guidance is clear that to be eligible for the subsidy employers must document their communication with the employee on being furloughed.
• You must confirm in writing that an employee has been furloughed, but that the employee does not need to provide a written response. Please note that this is for the purposes of making a claim under the scheme. Any reduction in pay must be agreed in writing under normal employment law principles and failure to do so may result in Employment Tribunal claims. You should not rely on a term in the employment contract to effect this change. We can advise you on how to document this properly.
• Employers must also keep a record of the agreement for at least 5 years.
• If employers have collective bargaining arrangements in place, they must agree this change with the union in the usual way.
• Collective consultation obligations may be triggered if there are 20 or more employees that are proposed to be dismissed and re-engaged in order to effect the change to terms to be furloughed. You should take advice if you think this may apply.