Furlough: What You Could and Couldn't Do

Understanding the Furlough Scheme: A Comprehensive Guide

The Coronavirus Job Retention Scheme (CJRS), commonly known as the furlough scheme, was a vital initiative introduced in March 2020. Its primary aim was to bolster businesses and safeguard employees during the unprecedented challenges of the pandemic, whilst also aiding the UK economy's recovery. Central to the scheme's eligibility was a clear stipulation: furloughed employees were strictly prohibited from undertaking any work for their employer, or any associated or linked organisations. This encompassed activities that generated revenue or provided services. This article delves into the intricacies of what furloughed employees could and could not do, providing clarity and addressing common queries.

Can Employees Undertake Training Whilst Furloughed?

Yes, employees were permitted to engage in study and training while on furlough. The objective of this training could be to maintain existing skill sets or to acquire new ones, provided it was intended to enhance the employee's effectiveness within their employer's business or improve the overall performance of the business. However, a crucial caveat applied: any training undertaken must not have involved providing services, contributing to business activities, or generating revenue for the furloughing employer or any related entities. If an employee was required to complete training, such as an online course, they had to be paid at least the National Minimum Wage for the time spent training. This payment was considered working time and could exceed the 80% furlough wage, meaning employers might not have been able to reclaim the full cost of training periods from the government.

Volunteering During Furlough: Was It Allowed?

Absolutely. Furloughed employees were entitled to participate in volunteer work. This even extended to volunteer activities organised by the employer that had placed them on furlough, provided these activities did not involve providing services or generating revenue for the employer or any associated organisations. Employers were also permitted to assist furloughed staff in finding volunteering opportunities.

Employer Contact with Furloughed Employees

Many employers wished to maintain contact with their furloughed staff for relationship management purposes. The prevailing view was that employers could, and indeed should, keep employees informed about business operations and provide reassurance. ACAS guidance suggested that furlough agreements should outline communication protocols. This meant employees could participate in social and charitable events, be consulted on business changes, and engage in HR matters like disciplinary proceedings. Furthermore, employees could continue their union or non-union representative duties, as long as these activities did not generate revenue or provide services for the employer or linked organisations. The overarching principle remained: no work that generated income or services for the business.

Business Meetings and Email Checks: A No-Go?

Generally, employers could not require employees to attend business meetings whilst furloughed, as this could be construed as providing services. Similarly, requiring employees to check their emails was problematic. There was a significant risk that employees might respond to emails or action points, which would constitute a breach of the CJRS, even if it was just a few emails. To mitigate this, employers were advised to revoke access to work emails for furloughed staff, set up automatic forwarding, or grant a line manager access to inboxes.

Handover of Duties and Promotional Activities

Employers were advised to discuss workload and handover tasks with employees at the point of furloughing them. However, providing handover information whilst an employee was furloughed carried the risk of being considered providing services or generating revenue, thus breaching the CJRS. Participating in promotional activities was also prohibited, as marketing is typically geared towards generating revenue.

Urgent Work Needs During Full-Time Furlough

If an employer had urgent work that a fully furloughed employee would normally undertake, and no other staff were available, the options were to either bring the employee off furlough entirely or place them on flexible furlough. Flexible furlough offered a more adaptable approach, allowing employees to return to work on a part-time basis.

Consequences of Working Whilst Furloughed

Any employer requiring or allowing employees to work whilst on furlough risked invalidating their claims for wages under the CJRS for the period the work was undertaken. This could lead to penalties and fines from HMRC. Such actions were likely to be viewed as a breach of the scheme, potentially requiring the repayment of all monies claimed. While employees were not typically liable to repay wages unless their contract stipulated it, employers faced significant repercussions. HMRC possessed the right to conduct retrospective audits, and any claims found to be fraudulent or based on inaccurate information could result in withheld payments or full repayment.

Table: Permitted vs. Prohibited Activities

How HMRC Found Out About Breaches

The CJRS was designed to prevent abuse. Claims found to be abusive or contrary to the scheme's purpose could be challenged. HMRC had the authority to audit claims, and guidance indicated that payments could be withheld or reclaimed if inaccuracies or fraud were detected. Businesses had a 90-day grace period to self-report compliance issues to HMRC, often avoiding penalties. Crucially, HMRC established an online portal for the public and employees to report suspected fraud, meaning breaches could be reported by anyone aware of them, including friends or family of the employee.

Refusing to Work Whilst Furloughed: Employee Rights

Employees could not be disciplined for refusing to work whilst furloughed. Such a refusal was in line with the CJRS rules, and it would have been unreasonable for an employer to initiate disciplinary proceedings for this reason. Furlough was an agreement, and the employee was adhering to the scheme's stipulations. Refusing work in this context was not considered misconduct or absence without leave.

Employee-Initiated Work and Employer Safeguards

Even if an employee undertook work voluntarily without the employer's explicit instruction, it could still jeopardise the employer's CJRS claim by being construed as providing services or generating revenue. To maintain control, employers were advised to revoke email access and clearly state in furlough agreements that working was prohibited. Making it a disciplinary offence could also deter employees from working whilst furloughed.

Working for Another Employer During Furlough

Employees were permitted to take on new employment whilst furloughed, provided their contract of employment allowed it. If a contract stipulated restrictions on working for other employers, it was recommended that parties agreed to a temporary variation of the contract or that the employer provided written consent. While an employer was not obligated to permit secondary employment if prohibited by contract, an employee might argue that such work did not interfere with their furlough duties, as no duties were being performed for the furloughing employer.

Frequently Asked Questions (FAQs)

When should I calculate my furlough date?

The specific calculation of furlough dates depended on when an employee was initially furloughed and the periods for which claims were made. Generally, employers needed to ensure that employees were furloughed for a minimum of seven consecutive days to be eligible for a claim under the CJRS. The exact start and end dates of furlough periods were crucial for accurate claims and compliance.

Can an employee work for an employer while on furlough?

No, under the standard rules of the Coronavirus Job Retention Scheme, an employee could not undertake any work for or on behalf of their employer, or any linked or associated organisation, whilst on furlough. This was a fundamental condition for eligibility to claim under the scheme.

The furlough scheme, while a lifeline for many, came with a strict set of rules. Understanding these guidelines was paramount for both employers and employees to ensure compliance and avoid penalties. The ability to train, volunteer, and maintain communication was balanced against the core principle of not undertaking work that benefited the furloughing organisation.

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