Furloughing employees: Common questions answered in light of latest government advice

As the government continues to keep matters under constant review, new updates on the Coronavirus Job Retention Scheme (CJRS) have been published, the latest update being 20 April 2020. Here, employment law expert, James Johnson offers some clarity on some common questions regarding the scheme. 

Can a furloughed employee carry out voluntary work?

Government guidance is very clear in stating that a furloughed employee can undertake voluntary work as long as that work does not provide services to or generate revenue for the employer. 

Therefore, it will not be permissible for employees to carry out their normal work during furlough, even on a “voluntary” basis.   

Can a furloughed employee undergo training?

Employees who have been furloughed can undertake training, provided the activity does not generate revenue or services to the employer. 

If you are requesting your employees to undergo training, they must be paid at least their appropriate national minimum wage/ national living wage for the duration of that training. The 80% wage payment, up to £2,500, available under the CJRS should be sufficient in most cases. 

However, where time spent training means that the pay for the time training falls short of minimum wage obligations, the employer must ‘top up’ the wage to cover their employee’s time when training.  

Do I need to agree furlough with my employees?

Yes, you must seek your employees’ agreement when furloughing them, rather than simply forcing it on them. Their confirmation of this in writing is required in order to be eligible for the grant. 

When making decisions about who to furlough, please note that equality and discrimination laws will still apply.  

The only exception to this would be in the unlikely case that your employment contracts already include a clause relating to a right to remove work or pay. In any event, the Treasury have stated that in all cases there needs to be a written agreement between the employer and employee that the employee will cease all work for the employer. 

Can furloughed employees work for a different employer?

Surprisingly, yes - a furloughed employee can, if permitted by the contract with the furloughing employer, take up new employment during the furlough leave. This can be done without affecting the furloughing employer’s CJRS grant. 

It does seem strange that an employee can recover 80% of their pay from one employer and take up new employment with another at the same time, earning 100% more. However, it is understood that the rationale for this is that workers are required for key roles within the food and healthcare industries. 

We expect that employers will be reluctant to agree to employees working for a competitor during the current time, and employers should look to their employment contracts to establish whether ‘other work’ is permitted. .    

An important caveat is that an employee cannot work during furlough for another employer associated with the furloughing employee i.e. the employee cannot be engaged by a group company of the furloughing employer.  

Please note, all advice and opinion offered in this article are subject to change in line with the latest government advice.