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Can NHS or local authority workers be furloughed?

It is envisaged that employees of organisations falling into the first two categories set out above and won’t be eligible for the job retention scheme in relation to the majority of their employees. It is envisaged that NHS Trusts for example are going to require their staff to be working at full capacity where possible. However, the guidance doesn’t definitely exclude public sector organisations from furloughing employees and notably the government expects such organisations to use public money to continue to pay staff and not furlough them, rather than say requires. In reality, it is difficult to see how such an organisation will be able to rely on the scheme, but the guidance doesn’t completely rule it out.

Related FAQs

What is available to stop creditors taking action against the company to recover debts during the current crisis?

The government has announced a number of measures to try to protect businesses during the current period of uncertainty. However there is no outright ban on creditors being able to take legal action to recover money they are owed, though there are temporary restrictions on some forms of legal action, like winding up petitions.

However, it is important to note that these measures only relate to winding up proceedings. Creditors will still be free to commence county court claims.

The new Corporate Insolvency and Governance Act 2020 brings in a new “moratorium” procedure. Businesses in financial difficulty that are viable and can be rescued will now be able to work with an insolvency practitioner to obtain at least 20 business days’ breathing space from creditors to allow the business to formulate a plan to deal with its financial problems.

For more information on the Corporate Insolvency and Governance Act, click here

As part of the raft of measures put forward by the government over recent months, there are also restrictions on landlords taking action to evict commercial tenants who miss rent payments. Various payment holidays and forbearance have been put in place in respect of certain tax liabilities and some business rates.

If your business is going to go into an insolvency process like administration or a company voluntary arrangement, there is the ability to obtain a freeze on creditors taking action whilst those procedures are put in place. However, these sorts of moratoriums will not be available to everyone and in any event not unless an insolvency process is being instigated.

Regardless of whether a business has formal protection from creditors or not, engagement with creditors and trying to reach agreement with them to deal with the debt is therefore vital. Much of the protection measures that the Government has introduced like curbing the ability of landlords to evict a commercial tenant, do not wipe out the debt. They simply prevent action being taken or a payment becoming due for a short time. All businesses should use that time to consider how those debts can be dealt with and engage with the relevant stakeholders sooner rather than later.

Last updated on 27th March, 2020

What rate of pay applies to an employee returning from statutory leave who is furloughed?

Statutory leave includes family related leave, sick leave or parental bereavement leave. Claims for furloughed individuals returning from statutory leave should be based on their salary, before tax, and not the pay they received while on statutory leave.

Similarly, claims for furloughed employees returning from a period of unpaid leave on sabbatical should be based on their pay they would have had on paid leave.

Last updated on 16th April, 2020

What suggestions do you have to raise the profile of the MHFA group in an organisation, particularly with agile working?

Details of your MHFAs should be posted somewhere that everyone can access easily – a specific area on an intranet or whatever alternative exists. Regular comms involving the MHFAs, webinar sessions, Q&A sessions and mental wellbeing drop in sessions are all ideas that may work well.

Last updated on 8th April, 2022

Can I require employees to take holiday during furlough?

Yes. Government guidance now confirms that employers can be required to take holiday during a period of furlough, so long as they are given minimum notice to do so. The notice required is double the length of the holiday.

Employers are also able to cancel employees’ holidays (or require them not to take holiday) if they are on furlough, for example if they are not in a position to pay the additional 20% top up to their normal wages (or more where they earn in excess of the £2,500 monthly cap on furlough payments). Again, employers are required to provide a minimum period of notice of cancellation, which in this case, is the length of the planned holiday.

Employers can ask employees to take or cancel holiday with less notice but they would need to get their agreement to do so.

Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.

Last updated on 15th May, 2020

What is the guidance in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 pandemic?

The Department of Health & Social Care has published guidance for hospitals, care homes and supervisory bodies on the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the coronavirus pandemic.

In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:

  • if new arrangements constitute a ‘deprivation of liberty’ (most will not), and
  • if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation will be required (in most cases it will not be).

If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.

A summary of the key points to be taken from the guidance is outlined below:

Use of the MCA and DoLS due to Covid-19

  • During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
  • It may be necessary to change the usual care and treatment arrangements, for example to provide treatment for people with Covid-19, to move them to a new hospital or care home to better utilise resources or to protect them from becoming infected.
  • All decision makers are responsible for implementing the emergency Government health advice  and any decision made under the MCA must be made in relation to a particular individual, it cannot be made in relation to groups of people.

Best interest decisions

  • In many cases, a best interests decision will be sufficient to provide the necessary care and treatment for a person who lacks the capacity to consent to the care and/or treatment arrangements during this emergency period.
  • If an individual has made a valid and applicable advance decision to refuse the treatment in question, then the relevant treatment, even for Covid-19, cannot be provided.

Delivering life-saving treatment

  • Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of Covid-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.
  • The DoLS will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with Covid-19.

The full guidance can be found here.

Last updated on 14th April, 2020