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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70281
Experience:  Qualified Employment Solicitor
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Can an employee who has been furloughed and then been asked

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Can an employee who has been furloughed and then been asked to work remotely from home get into trouble if they do work. Obviously I know the employer can. Thanks
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: Yes discussed with the MD. The company is very small and only the employee in question ran the office side of the business and the MD didn't know how to undertake the work which is why he asked her to complete it.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Employees
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Said employee is now being progressed to redundancy the day after she signed to agree to furlough to the end of October. Employer doesn't know due process and is being advised by a company but not telling them everything

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Hi there. Can I just check, how long has the employee in question worked there for?

Customer: replied 6 days ago.
5 years

OK thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. If an employee works during furlough then it is indeed just the employer that may get into trouble legally. That would be a breach of the furlough scheme and potential fraud but as it is the employer who is knowingly making the fraudulent claim from HMRC, they are the ones who have liability over this. Obviously if you are knowingly breaking the rules you should not participate and can report the employer (thousands of employees have reported their employers for such breaches) and should politely point out the rules and refuse to o the work.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 6 days ago.
Thank you for your response. Another question, can the company commence consultation the day after employee has signed to agree to be furloughed to the end of October. Should it be that the consultation period starts after this time due to the agreement being signed? Many thanks

The furlough agreement can be overturned at any time because furlough is not a right under law, it is just an option for employers to help them with reduction in workload and associated expenses but they can change their mind and not stick with it if they did not want to.

Customer: replied 6 days ago.
OK thanks for that. If said employee also has been liaising with employer and had an informal meeting which was to discuss the current lack of work on horizon and the financial situation with the company on 01.09.2020, then employer sent a letter to request employee consider voluntary redundancy and said employee advised would not be applying. Can the employer then request and further meeting on 15.09.2020 and advise that they can commence the meeting as an "At Risk" meeting or back date this to the meeting on 01.09.2020. Employee has a full record of the situation from the beginning. It can be sent over for review, however would this be included in the £5 7 day trial? Thanks

Hi there, unfortunately I won’t be able to look at documents right now (which would be charged extra anyway). In terms of the last question, the employer could do this because by law there is no minimum period for consultations or any specific timeline that must be followed (unless there are 20+ redundancies in one establishment, in which case collective consultation rules apply)

Customer: replied 6 days ago.
Thank you for your response. So consultation can be as little as 2 weeks then follows the notice period which would be 5 weeks and 5 years completed?

Consultation can be even less than 2 weeks, it can potentially be completed in a week, or even a few days. The only requirement is that it is done in a meaningful way. And as to notice of termination, that would be as per contract, but not less than 5 weeks which is your statutory entitlement for 5 years’ service.

Customer: replied 6 days ago.
That is what I thought and thanks for your assistance. Can you confirm that if I have further questions in the next 6 days I can contact through this link?

You can indeed for any short follow up questions related to the original topic

Customer: replied 6 days ago.
Thank you Ben and I will probably be in touch as this is a fluid situation.

You are most welcome and all the best

Ben Jones and 4 other Employment Law Specialists are ready to help you
Customer: replied 11 hours ago.
Hi Ben. I've just had my 3rd and final consultation prior to being put onto notice period, however I've been told that I will only receive 4 weeks notice as I haven't completed 5 years until 05/10/2020. Is this correct? I thought that my notice period takes me over the 5 years, so I would be entitled to 5 years notice period? I know that I am entitled to 5 years redundancy as my finish date will be after 05/10/2020. Thanks

Hello again, will you be working your notice period?

Customer: replied 7 hours ago.
Hello again Ben. Thanks for answering. I am not sure yet as I am now awaiting a confirmation letter than I am to be made redundant. Obviously the information contained in this letter should set out my notice period but I will not be working. Apparently they still want to keep me on furlough and my boss seems to think he only still has to pay me the percentage as per furlough which I also think is incorrect. I believe he should be paying me 100% of my salary from the beginning of the consultation period and also 100% during my notice period.

Thank you. Your rights on notice pay will depend on what happens over your notice period and if you remain employed or the pay you in lieu of notice. The latter will not get you over the 5 year service, but if you remain employed, even on furlough, it would.

Also 100% pay is due in the notice period, even if furloughed, as long as your contractual notice period you are due is not at least a week longer than your statutory one.

See here:

http://emplawservices.co.uk/wp-content/uploads/2020/04/Notice-Pay-when-on-Furlough.pdf?mc_cid=9d1c05d649&mc_eid=99a710f48e

Customer: replied 7 hours ago.
that is what I read on the CAB website. My contractual notice period is 4 weeks Does this mean that even though the consultation started on 01.09.2020, I am still only entitled to 80% up to 22.09.20 and then 100% for the next 4 weeks? If they decide to PILON (pay in lieu of notice) this will be on 28.09.2020 and should include only 4 weeks notice and not 5. If they only pay September pay on 28.09.2020 and then look at paying the remainder on my finish date (looking to be 20.10.2020, they will have to calculate and pay 5 weeks notice as I will have completed 5 years on 07.10.2020 (sorry not 05.10.2020 as I stated previously)

The 100% only kicks in once you have been issued with formal notice of termination.

Also the payment date has no relevant, it is the date your employment terminates, not when you actually get paid.

I hope this clarifies things for you a little bit more.

Customer: replied 6 hours ago.
Almost clarified. My last part is to clarify that if I am kept employed during my notice period, this will take me past my 5 year completed date. Will I not be entitled to 5 weeks notice period? If so, this will provide a further weeks notice and if not, I will be due full settlement on 28.09.2020 which will qualify as PILON?

If you are being kept employed for the notice period and you remain employed past the anniversary date, you will get another week’s notice. However if your employment is terminated before that date using PILON, you won’t get that extra week.

Customer: replied 6 hours ago.
Thanks for the clarification Ben. I know I only have until tomorrow to utilise this 7 day trial period, however I will see what transpires in the next 24 hours and may be in touch tomorrow. However, if we do not liaise again, thank you for your assistance. Karyn

Hi Karyn, no problem at all and it has been my pleasure assisting you