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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73890
Experience:  Qualified Employment Solicitor
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I have an employee on furlough, she was on a verbal contract

Customer Question

Hi
i have an employee on furlough, she was on a verbal contract and i have now issued a new contract in Nov 2020 which she hasnt signed after repeated attempts to contact her. I have finally given her another copy (signed by my manager as i wasnt available). The contract is a zero hour contract as was the verbal one, although she did have regular hours prior to the the furlough. I have only 7 hours work a week for her now. So if i take her off furlough and give her 7 hours it will be a drop in her income per week. I could make her flexi working with furlough but when the percentage drops from 80% i cant afford to top her up to make the 80%as gov requests.
so basically where do i stand on contract and can i take her off furlough completly and employer her for 7 hours? she has been working for 9 years with the cafe. but due to covid restrictions are hours have dropped dramatically.thanksMatt
Submitted: 11 days ago.
Category: Employment Law
Expert:  Ben Jones replied 11 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.

Customer: replied 11 days ago.
ok
Expert:  Ben Jones replied 11 days ago.

Can I just check when this employee was initially furloughed?

Customer: replied 11 days ago.
23 march 2020
Expert:  Ben Jones replied 11 days ago.

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.

Customer: replied 11 days ago.
cool thanks have a great day
Expert:  Ben Jones replied 11 days ago.

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.

Expert:  Ben Jones replied 11 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.

Customer: replied 11 days ago.
thanks perfect
Expert:  Ben Jones replied 11 days ago.

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