Can you place employees who TUPE transfer to you on Flexible Furlough?
A new employer may claim under the scheme in respect of the employees of a previous business transferred after 10 June 2020 as long as:
- the TUPE or PAYE business succession rules apply to the change in ownership
- the employees being claimed have previously had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June
In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:
- the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June
- the number of employees that are being transferred to the new employer which have had a claim submitted for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject the maximum cap the previous employer was subject to.
A new employer is also eligible to claim under scheme in respect of the employees associated with a transfer of a business after 10 June 2020 from the liquidator of a company in compulsory liquidation where:
- TUPE would have applied were it not for the company being in compulsory liquidation
- the employees being claimed for have been furloughed and a had a claim submitted for them by their prior employer in relation to a period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June
In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:
- the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June and
- the number of employees that are being transferred to the new employer which have had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject to the maximum cap the previous employer was subject to.
Related FAQs
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.
In practice this means that any risk assessment will need to be reviewed constantly and adjusted as our understanding of the nature and level of the risk grows.
Some service-providers are instigating special Oversight Groups to keep this issue under review but engagement and consultation with those affected is critical and making sure they feel confident to raise concerns and refuse to work if they believe they are not safe.
The BBC
The national broadcaster’s collated content surrounding the Covid-19 pandemic:
https://www.bbc.co.uk/news/coronavirus
and with regards to business:
https://www.bbc.co.uk/news/business
No. Before continuing any negotiations, you need to strongly consider whether now is the best time to settle. There is a myriad of uncertainty due to the pandemic, with unemployment rates increasing, volatility in the stock markets and difficulties regarding placing valuations on assets. This could all lead to the financial settlement being unfair to you and cause you financial difficulties in the future.
Any financial settlements reached following marital separation should be embodied in to a Court Order, to prevent future claims from your ex-spouse. As a general principle, although maintenance orders are always variable, financial orders in respect of capital (e.g. house, cash, investments, pensions) are final and it is very difficult to set aside a Court Order. The question will be whether or not the pandemic is judged as a Barder event, which broadly means something viewed as unforeseen. It would be challenging for you to argue that the effects of COVID-19 are unforeseen given the widespread expectation of an economic crisis. The Court previously found against a husband who wanted to revisit an Order that he said was unaffordable following the 2008 financial crisis, with one Judge commenting that a 90% drop in the Husband’s share price was a “natural process of price fluctuation”.
Even if you informally agree a settlement with your ex-spouse, and you do not have this reflected in a Court Order, your ex-spouse may still rely on this agreement within future Court proceedings and argue that you should be held to it.
It is, therefore, very dangerous to be reaching any financial settlements at this time with your ex-spouse without careful consideration and legal advice. Further, even if an agreement is reached, market volatility can mean longer implementation times, especially when a settlement relies on the sale of property.
You should have in place a dispute resolution procedure that sets out the appeal process or contractors or the agency as appropriate. You must respond to an appeal within 45 days.
If the status determination is disputed you should consider the contractor or agency’s reasons objections. You must consider if the original determination is to be maintained and give reasons for this. Or a new determination with reasons can be provided if appropriate.
Records of disputed determinations and the outcome of any appeal should be kept.