What can I do if an employee refuses to work due to lack of PPE?

You should already have a written furlough agreement with your furloughed employees, but if you move them to flexible furlough then you need a new agreement that confirms the new furlough arrangement.

So, you’ll need to speak to your employees and confirm the hours of work with them in writing (or reach a collective agreement with a recognised Trade Union.

As before, an employee does not need to provide a written response. But the agreement needs to be documented in writing.

• 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.

Lenders implementing the Scheme can assist in a number of ways, including:

• Term loans
• Overdrafts
• Invoice finance
• Asset finance facilities

The maximum value available under the scheme is £5m, with repayment terms of up to six years for term loans and asset finance. Overdrafts and invoice finance facilities will be available for up to three years.

The Office of the Public Guardian is continuing to accept applications to register Lasting Powers of Attorney but their usual estimated timescale of eight to ten weeks is likely to be affected by the current situation.

Consequently, an alternative or interim measure if you need something quickly is to execute a General Power of Attorney to authorise someone to act as your Attorney to undertake day to day financial transactions for you. The General Power of Appointment only needs to be executed by you in the presence of a witness (not the Attorney) to be valid and does not need to be registered with the Court of Protection. However, the Power of Attorney would cease to have effect if you become incapable of managing your affairs. It should be seen as a stop-gap only.

We have developed a toolkit to assist with compliance. The Toolkit contains a specimen contract; detailed guidance; step by step guides and flowcharts; details of the factors to take into account for the status determination test; procedures for challenging the determination; and standard letters for the process.  Click here to fill in a form and register your interest in the Toolkit, which contains:

1. Detailed guidance in the form of Key Facts
2. Employment status checklist
3. Employment status assessment flowchart
4. Status questionnaire and guidance
5. Letter confirming self-employed status (agency)
6. Letter confirming employed status (agency)
7. Letter confirming self-employed status (direct with PSC)
8. Letter confirming employed status (direct with PSC)
9. Status disagreement process guidance
10. Status disagreement process flowchart
11. Letter confirming outcome of status disagreement process
12. Consultancy agreement