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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 71376
Experience:  Qualified Solicitor
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Aged 71 and have been working for a warwickshire -based

Customer Question

Hi, I am Male, aged 71 and have been working for a warwickshire -based travel company as a part -time driver for 7 years. My contract is Part time Zero Hours. - No Prob.
JA: Have you discussed the zero hours contract issue with a manager or HR? Or with a lawyer?
Customer: During the first round of Furlough (and Covid) I, along with my part-time colleagues were furloughed.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: The latest situation is that the company have removed furlough rights to the part-time PAYE employees on the basis that they cannot afford payments of NI and Pensions. I, being paid State pension, attract no contributions from the employer. Furthermore, my earnings fall below the monthly max for employer NI contributions. Therefore, for this tax year, my employer has paid no NI or pension contributions yet they deny me Furlough on a mass group basis. Am I able to seek separate consideration for furlough?
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 18 days ago.
Category: 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.

Have you already approached them about it? 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

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.

Expert:  Ben Jones replied 17 days ago.

Without the requested information, I can only provide you with the following general response, which will hopefully still answer your query. First of all, I am sorry to hear about the issues you have experienced in your situation.

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 17 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.