As a result of the Coronavirus pandemic we are experiencing unprecedented employment circumstances and lots of different terms are being used to describe a worker/employee’s situation:-
The employer provides the employee with no work, nor pay for a undefined period, but retains them as an employee.
Short time working
The employer provides less work (normally less hours of work) for less pay but retains the employee.
An employer should only impose one of the above if the contract of employment makes full provision for this, otherwise the employee would have a claim for breach of contract.
In certain circumstances where an employee is put on short time working or lay off they become entitled to claim a statutory redundancy payment. This is only where the employee has at least two years continuous employment with the employer and the statutory scheme for claiming redundancy pay is followed.
To be able to claim the employee must have been laid off or kept on short-time working (or a combination of both) for at least four or more consecutive weeks; or a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks.
A potentially fair reason to dismiss under the Employment Rights Act 1996, either due to:-
- A place of work closure
- A company/business closure
- There no longer being a need, or there is a reduced for employees of a particular kind.
It is worth noting, however that notice must still be given to the employee that the employment is to be terminated.
With the worker/employee’s consent they agree to go on paid leave for a minimum period of three weeks whereby they do not undertake any work and are retained as an employee. The employer can utilise the Government Retention Scheme and recoup up to 80% of staff wage costs via HMRC. The employer is not obliged to pay 100% of pay during furlough leave. Forcing an employee to be furloughed would amount to breach of contract. Therefore, it can only be done with the employee’s express consent.
There is no right to request furlough leave, nor any right to request redundancy as an alternative.
For advice as an employee or employer our employment law specialist solicitor Jennifer Carpenter is available at firstname.lastname@example.org.