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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 68130
Experience:  Qualified Employment Solicitor
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I’m currently Furloughed but my employer recently advertised

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I’m currently Furloughed but my employer recently advertised my role for immediate start, I emailed them asking when I will be returning to work. They have know invited me to a pre furlough performance review. Are they legally able to do this.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I have the review with 2 directors later this week
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I’m employed started 8/17. I’m not in an union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Is this the first you have heard about there being performance issues? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 9 days ago.
I had a performance review last June, I work as a recruitment consultant within the Construction sector. In August 2017 I was made redundant and my current employer offered me a role and n the same salary etc as with my previous employer. Since then I have been told on several occasions I was being paid too much. In June 17. I had a review with my managers and again they said I’m not doing enough to cover my costs and an improvement was needed. Since then my figures have improved and they were happy. I was furloughed end of March but was told I still needed to make sales and was told I could only be taken off furlough when I was billing enough to cover my salary. I replied stating I’m furloughed so unable to work. I noticed they have advertised my role on Social media last week and when I asked HR when I was to be taken off furlough I received an email asking me to attend an performance review.
Customer: replied 9 days ago.
Sorry started in August 2018 and had review in June 2019

Thank you. I just want to clarify the start date again please – 2017 or 2018 as there is conflicting information in your posts above?

Customer: replied 9 days ago.
Hi, i started 6th August 2018

Many thanks for your patience. So the employer is able to ask you to attend a performance review if needed, even if that related to issues pre-furlough. I suppose the main issue now is what they are aiming to do and if this will potentially lead to your dismissal.

The problem for you is that as you have been continuously employed at you place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

{C}· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

{C}· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you (unless you were dismissed for gross misconduct, where no notice would be due). If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they instead have to pay you in lieu of notice, where you are paid for the equivalent of the notice pay but your employment is terminated immediately.

I appreciate this may not be the answer you were hoping for but it is the legal position and I hope that it at least clarifies where you stand?

Ben Jones and 4 other Employment Law Specialists are ready to help you
Customer: replied 9 days ago.
Ok thanks Ben. Can you confirm that they would have to pay me my notice even if they terminate my employment immediately, and would it be a month as I’m paid monthly. Also would they have to pay any bonuses or are they not obligated to do anything.

Yes they would have to pay you for the notice period in full. In terms of bonus, that is less straightforward and depends on whether it was guaranteed or discretionary and also whether the bonus rules say it is not payable if someone was to have their employment terminated

Customer: replied 8 days ago.
Thanks Ben. Am I within my legal rights to record the performance review meeting, it is being conducted via Zoom? Also was it legal that they advertised my job as immediate start whilst I was still furloughed and the only person doing the role?
I also have proof that they wanted me to work whilst furloughed and that I did make them profit whilst I was furloughed. Thanks

Hi how will you be using the recording?

Customer: replied 8 days ago.
As reference if I feel I have been discriminated against. What about my other questions

You can record it but you cannot disclose it to a third party without the consent of the others being recorded. If you want to use it as evidence in court, it is up to the court to decide whether to allow its use.

The advertising of the role is not illegal considering you have no unfair dismissal rights which is the only way to challenge this

If you worked whilst furloughed then that is a matter between them and HMRC but you can report them if needed