Can a notice be issued during the extended furlough scheme? Can people be made redundant?Posted in : Seamus Says - Employment Law Discussion on 6 November 2020
Seamus: Yeah, so in relation to the first . . . I'm going to caveat both replies by saying that there is further guidance to be issued by the government. And I think we've been told that that's going to arrive at us by the 10th of November. It could be a bit before. It could be a bit after. Who knows but that's what we've been told. In relation to the first question, so far as I can see, there is no difference to the guidance in relation to redundancies. The specific things that would apply is that you can still make somebody redundant whilst they're on furlough, and you can use the furlough scheme in respect of their dependency pay or sorry not their redundancy pay. You cannot use it for the redundancy pay.
You can use it for their notice pay, but obviously you have to top up with the notice to the full 100%, but you cannot use it in respect of any redundancy payments. So it seems to me that the same position does apply as to how it applied previously, and obviously at redundancy also that the person is entitled to payment fully in relation to their holidays that they have accrued but haven't taken. But the most employers in my experience, as they're going through and working through the notice period if they're contractually able to do it, they're asking the employees to take their holidays during the notice period but then they have to obviously top that up as they would do anyway on a notice payment.
Scott: Can you bring people back? So if they've been made redundant because the furlough scheme was ending and the employer didn't have the money to pay up even with a reduced amount on the JSS, that made people redundant, are they able to take them back and furlough them?
Seamus: Yeah, there is specific guidance. I'm nearly sure as I frantically look through my document but I'm nearly sure it's from anyone that's been made redundant since the 23rd of September that they can be brought back and put on furlough instead. And I just double checked that now, and yeah, it is. Actually, it's employees who were made redundant, or stopped working after 23rd of September can be re-employed and claimed for.
Scott: And I take it once they come back what happens to the continuity and so on? Presumably that would be as if the dismissal hadn't taken place but they have to repay redundancy money?
Scott: They may not have had to.
Seamus: I would have thought so in relation to you if there's a change in their status and they're brought back, then there would be an issue that would arise in relation to redundancy. And it's one of the very interesting points that I haven't come across been addressed in a court or tribunal or anything like that, is that if they're brought back, where does that leave you in respect of the employee? I mean the presumption is that they come back, their period of continuous employment picks up from where they left off, and you will have to look at, you know, business need and the potential of redundancy then following the ending of this extended furlough period. And I suppose depending on just what the business requirements are at that time.
But yeah, you can imagine the difficulties that that's going to create for someone that has maybe had their redundancy monies and maybe spend part of it in relation to repaying some debts, or maybe even, you know, given loans out and things like that from it, and how the employer would go about recouping that.
Scott: Yeah, well, they may have to pay it out come the spring anyway, I suppose. So whether they get it back, they may not get it later on.
More on Redundancy
- Dempster v The Gill Corporation Europe Ltd 
- If an employee requests voluntary redundancy is their employer still bound by dismissal procedures?
- Maxwell & Others v Tooley’s Bar Ltd 
- Redundancy Consultation and Notification - What is the Law?
- Why might an employer face criminal prosecution if a collective redundancy process is not followed correctly?
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