Employment Lawyers Can Answer Your Employment Law Questions
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.
Can I just check when this employee was initially furloughed?
OK I understand and 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. Whether you furlough her or not is entirely up to you and the scheme is there to be used by employers if the need help with meeting the wages of employees who have no work as a result of the pandemic. If someone is genuinely employed on a zero hours contract, then you do not owe them any hours and have the option of either furloughing them and claiming whatever you can get, or taking them off furlough and not giving them any work, relying on the ZH arrangement where you do not we them any hours.
The only thing to watch out for is whether the employer can try and argue that the fact they had regular hours means that an implied contractual term was created where they are no longer a ZH worker but had become an employee with regular, contracted hours of work. This is a complex area of law and something only a court or Employment Tribunal can determine, but to be able to argue it successfully she must e able to show that she had been given consistent hours for a prolonged period of time (usually years, rather than months) so that it was clear that it was intended by both for this to happen long-term or permanently.
So you can take the risk potentially where you take her off furlough and still just give her whatever hours you have and make it clear that she is on a ZH contract which has always been the arrangement and hope that she does not go as far as legally challenging it, which will be difficult for her to do and argue as it can get quite technical an complex.
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.
You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best