Do I have to continue to pay furloughed staff while furloughed? Can I wait until I receive the money from the government?

If you consider the factors used to determine status you can include the following terms that are more in line with a self-employed relationship:

• The right to provide a substitute of the contractor’s choice in the event the individual is not able to perform the services;
• The ability to work for other businesses as long as doing so will not affect the services to be provided by the contractor;
• The contractor should have sufficient control over how, when and where (if possible) they provide the services;
• A degree of financial risk can be included for unsatisfactory work or failing to complete a project or task

We have terms that cover all of these points that can be tailored to your needs. The consultancy agreement is included in our IR35 toolkit.

This is likely to be a common situation and employers and employees are going to have to take a pragmatic approach. You could enter into a temporary flexible working arrangement perhaps agreeing to vary working hours/days or reducing targets or agree to use some annual leave.

Employees could ask to take a period of unpaid leave, asserting their right to time off to care for a dependant but the lack of pay is likely to be unappealing.

Alternatively employees who are unable to work because they have caring responsibilities as a result of COVID-19, which includes childcare responsibilities, can be furloughed.

• 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.

Yes, but as a last resort. In summary, the law requires employers:

• to assess the workplace risks posed to new or expectant mothers or their babies;
• to alter the employee’s working conditions or hours of work to avoid any significant risk to them;
• where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable”;
• where suitable alternative work is not available, or the employee reasonably refuses it, the employer should consider whether it is appropriate to suspend the employee on full pay.

Hopefully, further guidance will provide additional clarification on this, but it is difficult to see how a charity whose operations have been significantly curtailed because of the Covid-19 restrictions, cannot furlough employees and access the scheme, in particular where they have several different income streams. For example if a charity’s retail or fundraising operations have been significantly curtailed due to the restrictions, then it would appear unfair for it not to able to rely on the furlough scheme to assist in the funding of the employment costs associated with this part of the charity.

However, it might be prudent, where there are services that are publicly funded and employees working within those services cannot undertake their normal work, to consider if they can do different roles to work on Covid-19 activities. If there is no such work available then the guidance does appear to allow the furloughing of employees and such organisations to access the scheme.

In our experience, the funding streams and work undertaken by the organisations that could fall into the third category identified above can be exceptionally diverse and we would strongly recommend that you take advice before making such decisions about furloughing employees.