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Ben Jones
Ben Jones, UK Lawyer
Category: Scots Law
Satisfied Customers: 74428
Experience:  Qualified Solicitor
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I have been employed with the same company for nearly twelve

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I have been employed with the same company for nearly twelve years. Last October I ended up in hospital and had to go off sick until I received an operation at the end of January. I was on SSP during that time. I went back to work on 2 March and self isolated when the government advice came out. The company put me back on SSP until it ran out on 8 May. I had been asking them about furlough since April but they refused to put me on it despite other colleagues been listed on it. I would like to know if this is unfair as they didn't even look into it.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Yes with the manager many times
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am an employee
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

What reason did your employer provide for not doing this?

Customer: replied 1 year ago.
They said they were 'not obliged to place staff on furlough even if an employee requests this and that our approach is consistent with the aims of the scheme.'
Customer: replied 1 year ago.
Are you still there?

Thank you. Leave it with me for now, although please note it is extremely busy at present due to the ongoing situation so there may be a delay in replying, but I will get back to you at some point today. Please do not reply in the meantime. Many thanks

Many thanks for your patience. The first and most important thing to bear in mind is that furlough is not a given and there is never a ‘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 the scheme needs to be applied. Therefore, even if you meet all the criteria and tick every box to be eligible for furlough, the employer can still decide not to do so and you cannot challenge that decision (unless it was made on discriminatory grounds such as because of your gender, age, race, religion, etc).

If the employer refuses to furlough you then they are still obliged to honour their contractual obligations towards you. There are a couple of possible situations then:

· If you have guaranteed hours and no lay off clause in your contract, the employer would be expected to honour these and pay you as normal, even if there is no work for you

· If you do not have 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 you any hours or work and therefore not pay you.

In summary, furlough is just an option to help employers with their wage expenses, to allow them to retain staff for this difficult period, rather than having to let them go as they cannot pay therm. However, it is not a given that the employer will rely on the scheme and ask for such help and if they choose not to, then they simply have to continue meeting their contractual obligations, which are dependent on what your contract says, as explained above.

I appreciate this may not be the answer you were hoping for but it is the legal position and I hope that it at least clarifies where you stand?

Customer: replied 1 year ago.
they can pick and choose who they want to furlough and not have to treat all staff, all working at the same level, the same?
Customer: replied 1 year ago.
I'm sorry but I forgot to mention I was shielding. But would this then cover me for the period that the shop was closed for at least?

They employer can indeed be selective over who they choose to furlough. If you are shielding then that amounts to sick leave and you would be entitled to SSP but if you have used it all up because you have already been off for other reasons (you only get 28 weeks of it) then you may no longer be entitled to any pay.

Does this clarify things a bit more for you?

Customer: replied 1 year ago.
OK. Thanks

All the best

Customer: replied 1 year ago.
Thank you.


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