Disciplinary Action During Furlough

Posted in : Seamus Says - Employment Law Discussion on 11 September 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Disciplinary Action; Furlough

Scott: "Can I discipline someone who is still on furlough? I have apprentices who were paid full pay for the time that they continued their online learning up until the end of June. They were told that they would face disciplinary action if they did not engage in the learning once a review was completed with the tech in September." So they must be going to one of the local colleges. "We have now had that review, and there are a small number who did not engage and I want to discipline them all, but some have not returned to work and are still on furlough."

I'm getting warning signs here, Seamus. What's your thoughts?

Seamus: Yeah. I agree. Look, I think, to bring it back to end of March, start of April, whenever we got the guidance in relation to the Coronavirus Job Retention Scheme, it was made clear by the government that you could have employees undergo training while they were furloughed. But if they were going through that training aspect, that they had to be paid their sort of normal remuneration in relation to that.

So, you know, I think for me it very much comes down to the status of, you know, the employment contract was being retained, but the furlough meaning was essentially that there was a pause in relation to your employment. But I still do think that the terms and conditions of your employment would apply. I think I would be very cautious about moving to disciplinary proceedings against an employee who hadn't undertaken their training essentially during the furlough period and you now wish while they remain on furlough to proceed with the disciplinary against them. I think the two don't go hand in hand whenever you take a step back and look at the overview in relation to it.

But I also do think that there's an interesting point in and around, you know, every organisation will have standards that they expect the employee to uphold. And if those standards are breached during a period of furlough, they still remain an employee. And I think that it's fair for the employer to say, "There is an expectation here that we will retain the standards."

Think about things like if a crime was committed, for instance, that brought the organisation into disrepute. And if the employee was on furlough at the time, would the employer be able to do anything about it? Of if there was, you know, comments made on social media or photographs put up on social media where the employee had linked their employer, you know, it's an extension of things happening outside of the workplace.

I think it does put us on difficult ground while the employee is on furlough. But it's an interesting conversation and discussion certainly to be had around it, but I think overall I would be very cautious in relation to sort of moving forward with disciplinary proceedings where they remain on furlough.

Scott: Yeah. It's also extremely dangerous to discipline or certainly sack apprentices, because they have contractual rights that are different from normal employees. And I'm a College Governor at Southern Regional College, and I know there have been massive difficulties just assessing apprentices, particularly final year apprentices, because they have to be there in person to do them. You know, so it may not be the apprentice's fault that they haven't been assessed by the college because the colleges were all closed and it's very difficult to set up a safe system to assess students when, you know, they have to physically wire things up or build walls or whatever it happens to be. It's not the same as doing an online course, you know?

Seamus: Yeah.

       

This article is correct at 11/09/2020
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Seamus McGranaghan
O'Reilly Stewart Solicitors

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