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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 71375
Experience:  Qualified Employment Solicitor
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Is the new furlow scheme criteria the same as the 1st as my

Customer Question

Hi. Is the new furlow scheme criteria the same as the 1st as my wife's employer has stated they cannot consider furlow as the company has not been closed by the goverment
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Manager stated this this morning
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee. No union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 18 days ago.
Category: Employment Law
Expert:  Ben Jones replied 18 days ago.

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.

Expert:  Ben Jones replied 18 days ago.

Hi there. Can I just check, how long has your wife worked for this employer and has she been furloughed before?

Expert:  Ben Jones replied 18 days ago.

Hello, I was wondering if you have had a chance to consider my query above please? I will need your response before I provide an accurate answer to your situation. Thank you and I look forward to hearing from you.

Customer: replied 18 days ago.
5 yrs and 1st time furlow
Expert:  Ben Jones replied 18 days ago.

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.

Expert:  Ben Jones replied 18 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now.

You can find details of the extended furlough scheme here:

https://www.gov.uk/government/publications/extension-to-the-coronavirus-job-retention-scheme/extension-of-the-coronavirus-job-retention-scheme

As you can see it states:

“Employers across the UK can claim, whether their businesses are open or closed.”

Therefore, there is no formal requirement for the business to be closed for furlough to be claimed.

However, the first and most important thing to appreciate is that furlough is not an employee’s right and there is no ‘right to be furloughed’. It is simply an option open to employers to use as they see fit and the Government has entrusted them fully to decide as and when furlough needs to be applied. Therefore, even if an employee meets all the criteria to be eligible for furlough, the employer can still decide not to do so and they cannot challenge that decision (unless it was made on discriminatory grounds such as because of gender, age, race, religion, etc).

If the employer refuses to furlough an employee, they are still obliged to honour their contractual obligations towards them. That creates a couple of possibilities, depending on the contract:

- If there are guaranteed contractual hours and no lay off clause, the employer would be expected to honour these and pay the employee as normal, even if there is no work for them to do

- If there are no guaranteed hours of work, such as working on a zero-hours contract, in between assignments, etc then the employer can simply rely on that arrangement and not give any hours or work to the employee, meaning they are not obliged to pay them anything.

In summary, furlough is just an option to help employers with their wage expenses and allow them to retain staff in this difficult period, rather than having to let them go. However, it is not guaranteed that the employer will rely on the scheme and furlough an employee. If they choose not to do so, then they simply have to continue meeting their contractual obligations, which are dependent on what the contract says, as explained above.

Expert:  Ben Jones replied 18 days ago.

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.