Flexible furlough rules to put employers in the driving seat says BLM partner Jim Lister

BLM's head of employment law, Manchester - Jim Lister shares his perspectives on recent government guidance impacting employers and employees:

Announcements on working during the COVID-19 pandemic in the last 48 hours have been game changers, for both employers and employees. Taken together, changes on safe working guidance, and the Coronavirus Job Retention Scheme (furlough) signal that the emphasis will be on placing key decisions on return to work in the hands employers, rather than the government.

Late on Monday, eight detailed workplace safety guides (Working safely during Coronavirus/COVID-19) were issued by the government, covering a range of workplace settings, from offices and call centres to labs and research facilities. The stated intention – to allow employers, employees and the self-employed to understand how to work safely- marks a new stage in the government's strategy to get the UK back to work.

The latest of the Coronavirus Job Retention Scheme (CJRS)

Chancellor Rishi Sunak surprised MPs on 12 May by announcing that the current Coronavirus Job Retention Scheme will continue unchanged until the end of July, but that from August onwards, its cost will be shared between government and employers, with strong hints that it is expected that it will in effect become a scheme that subsidises part- time work, rather than supporting employees who are not working at all. There has been speculation that the furlough payments will decrease in value, perhaps initially to 60% of salary, and it is likely that the government intends that the rest will be made up from earnings from part- time work.

Limitations on the existing Coronavirus Job Retention Scheme

The current scheme has not allowed employees to do any work at all while on furlough, and that has been a source of considerable frustration to both employers and employees. From 1 August, it seems likely that employers will be able to use the scheme to subsidise employment costs while directing employees to work part-time while it makes its workplace COVID-19 safe or while workload gradually increases as the lock-down is released.

What will the post-July Coronavirus Job Retention Scheme look like & who will it empower?

The post -July CJRS/furlough scheme will be complicated, perhaps more so than the first version; and employers will have to spend some time getting to grips with the small print. The last version of the scheme required repeated official clarifications and explanations, and this version is likely to be no different. The government has announced that the detailed rules will be available by the end of May.

It is important to note that the post-July CJRS/furlough scheme will put a great deal of discretion in the hands of employers; employers can choose whether to furlough employees or not, and will be able to dictate which employees get part time hours. Not many people can survive on 60% of their salary, and the ability to earn more will often be in the gift of the employer. That gives employers a big bargaining chip when it comes to getting co-operation from employees on a return to work.

Coronavirus Job Retention Scheme & furloughed workers concerned about returning to a safe workplace

One danger is that employees who have concerns over safety after July may find that the financial pressures of reduced furlough payments give them no choice but to return anyway. There are complex legal rules relating to health and safety at work, which give protections in certain circumstances to employees who refuse to work in potentially dangerous conditions. Those rules generally have to be enforced in the courts, and that can take a very long time. The reality for many employees may be that they can no longer afford to stay away on 60% or less of salary, no matter what health concerns they have. The fact that reduced furlough payments, and increased safety measures have been announced only hours apart is no coincidence, and represents a deliberate strategy on the part of the government. The government no doubt hopes that employers will exercise the additional discretion they have been granted responsibly. In effect, employers have been given an extra month to make their workplaces safe. Many employees will be hoping that they use the time wisely.



Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.



Who to contact