Furlough Fraud; Returning to Work; Holiday Pay in Relation to Furlough

Posted in : Supplementary Articles NI on 3 July 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Furlough Fraud; Returning to Work; Holiday Pay in relation to Furlough

Some businesses are asking furloughed workers to work, despite this being in direct contravention of the job retention scheme’s rules, research has found – with one expert calling this a “blatant abuse of the system”.

A poll of 2,000 furloughed employees across the UK found 34 per cent had been asked by their employer to commit furlough fraud by carrying out their normal duties despite their employers claiming from the government’s coronavirus job retention scheme.

In this webinar recording Scott & Seamus discuss furlough fraud, the 30 day confession window, issues around returning to work and answer your questions on holiday pay in relation to furlough.

The Recording


Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal Island. Welcome to the latest webinar that we have on "Employment Law at 11." I'm joined by Seamus McGranaghan from O'Reilly Stewart Solicitors. We're just getting our slides set up there. And I also have Rolanda Markey from the L&D team at Legal Island with us as well.

We're going to be talking about a number of subjects today, mainly employment impacts of COVID. There are a number of changes that have come up, a few business questions that have been coming along with us. If you're just joining us for the first time, you'll see there's a little question box on your right-hand side. If you have any questions you want to send to us, then please do. They'll be read out anonymously, so we don't know who it is that's sending them in. We certainly won't read them out. We have had a number of questions in beforehand, and we'll be dealing with those.

And if you are just joining us for the first time, I think we've been doing these with Seamus for about three and a half years. So if you go on to the resources section in the employment law hub on the Legal Island website, if you're a subscriber to the updates, you can go into that Ask Seamus section and search for hundreds, and hundreds, and hundreds of questions where we have transcribed them and you can have a look at the answers.

Poll Result 1

62% said their organisation will not conduct temperature checks when returning to work

Poll Result 2

Only 30% reported that their organisation had contributed to the costs of homeworking


Poll Result 3

14% of employers have provided additional parking for employees to avoid using public transport


Helping Employee Maintain Social Distancing on Journey to Work

So maybe before we deal with the testing question, we've got a question here.

Should we be trying to provide access to free parking for our employees to enable them to drive to work rather than use public transport to help maintain social distancing and cut down the risk of exposure to the virus?

And I suppose that's a two-way thing, not only is it cutting down the risk for your employees but it's also cutting down the risk that that particular employee is going to come in and affect others. So any comments on that, Seamus?

Seamus: Yeah. I suppose that the issue of parking, really, has come about just shortly after the lockdown, the government announced that there would be free parking and that there wouldn't be any charges for, sort of, on street parking. Like, that wasn't an invite for people to park on double yellow lines and things like that, it was whether it was, sort of, the available, sort of, the public parking spaces that would be metered and things like that. And, you know, my office is in the city centre and that has proven to be very helpful and handy to be able to, you know, park outside the office if you needed to nip into the office maybe to get a file or if you were going in to maybe just to do some work.

As we've looked at, sort of, the return to work, I mean, my office is still closed, you know, on a public basis but we have a small skeleton staff in the office. And it is a matter that has arisen for us because everybody was able to, sort of, park outside the office and in around the office. But as from Monday there, the government has lifted those parts of the free parking and you can now see, if you're out and about, you can see the men and the ladies in the red coats back to doing their jobs.

So, you know, we've had a number of queries and stuff about parking and worried about taking public transport at this moment in time but still a necessity to get into work. So, I mean, I can understand why the question is being asked. I suppose I also thought about the other position, you know, if you work maybe outside of the city centre and you have free parking facilities within your office, but maybe the parking is limited to maybe management or something along those lines. Obviously, look, you know, you always need to be careful about your employees that have disabilities, and that would require those adjustments in relation to maybe attending work, and maybe that they do drive on non-public transport something that's available for them. So you can see that it's still presents some difficulties and issues for the employer.

We're also conscious that, I think it's from the 10th of July, that masks are now mandatory on public transport and there could be issues that arise there if an employee arrives on the bus or the train and forgets their mask and then they're late for work. You know, imagine all those sorts of issues. But, ultimately, I think it's a good idea for the employer maybe where they have reduced levels of staff and work at the minute, that they look to try to facilitate some sort of parking.

A couple of ideas in relationships to that are that, you know, if you're working on this on a rota basis, that you maybe use the car parking spaces that you have on a rota basis too. Obviously, things like, you know, car sharing and things like that are not possible at the minute so, you know, it's maybe looking at alternatives working patterns, maybe people working in the evening, the weekends and being able to use the car parking spaces that are there or looking at other forms of transport.

You know, motorbikes, for one, I'm not sure that everybody would be fit to come to work on a motorbike or would be able to. But there are, you know, cycling . . . We know that the government has opened up a position on e-bikes as well. You see some people coming down to work on scooters and things like that as well. So there are other options, I suppose, just in around there where people are using the likes of bicycle or e-bikes that the employer maybe needs to think about a safe place for storage of those. You know, maybe whether if there's a facility to lock those sorts of items up at the front of the office or whether they're brought in and stored at the rear of the office or whatever it is. But I think, looking up, that's, sort of, a holistic approach in terms of, you know, the alternatives, not just car parking spaces but alternatives to that.

I think, you know, the lawyer in me really does come down to the fact that if you do start to provide free car parking spaces for employees during this time, that you don't want the situation where it arises, they end up over a period of weeks, the employee then takes a position that, that in fact, is they're new terms and conditions, you know, that they consider that parking, now, is included within their overall employment package.

So where you are facilitating or maybe you are saying, "Okay, we're going to provide some car parking spaces that we would normally provide." I think, as long as that's set out in writing, and important to that would be the term that's going to be given for, and, certainly, that can be reviewed and looked at over the next lot of weeks. But I think, just something to safeguard the employer from, you know, issues arising that if that employee has been facilitated for car parking but they don't take a position that, that's the position going forward. I think that needs to be set out carefully for them.

Scott: Yeah. I suppose it's one of the points that happens with most of the things that are happening with COVID. At the minute, you're putting in lots of temporary things. And before we've had discussions about, do you provide the masks for people to come on to public transport in the past. You know, what about if you require masks in the workplace? I suppose so many of the things, at the moment, it's just a temporary situation that you hope is going to be not that long. Temporary can be quite a long time, right enough, but, you know, you're hoping that the numbers are going to drop or that there'll be some kind of a cure for this disease and therefore you won't require all of those.

But it's all tied down to the fact that the vast majority of people don't want to go back to work full time so there is a flexibility when it comes to providing those types of assistance for employees like parking, and bikes, and all that kind of stuff. And there will still be tax breaks if you're cycling or if you're employers that provide cycles and all that kind of thing coming down the line.

Temperature Testing of Employees

Another big issue that comes up, though, is testing. And I did have a question just coming in there as well. But the question here is:

Are we obliged to conduct temperature testing of our employees as they enter the premises? And then, what about the data protection issues on that if you keep any of those figures?

Seamus: Yeah. I mean, I think we've all come across it, sort of, on TV and on media reports where you see these, sort of, digital thermometers that employers are using to test temperatures. And I did see on TV last week, there was a documentary on it. It was a type of documentary where they were showing a sausage factory in Northern Ireland here and how their sales had substantially increased, and they were reliant on their workforce in terms of keeping the business going, and the steps that they had taken. And one of the steps they had taken was, the employees' queue outside on a social-distance basis and each of them had their temperature checked every morning.

I looked at this because I've had a number of queries from clients about it as well, particularly, in and around those digital thermometers seem to be quite expensive to purchase. And then, you know, if you're putting a thermometer in somebody's ear or into their mouth, you know, it raises issues in and around hygiene and things like that. So, like, certainly, they do seem to be the best thermometers that you can get.

But in saying that, there is no government guidance that requires the employer to conduct temperature tests. And, you know, I think that my overall view is that the government's guidance is still that, where you can work from home, you should continue to do so. And where you can't work from home, you know, you are being actively encouraged to go to work but to avoid public transport at the moment, that's the, sort of, government position.

So, really, the decision to invoke workplace temperature tests, it's really a decision for the employer. But that said, I think it is important that employers do remember that they have to listen to the concerns of their employees and they have to provide a safe and healthy work environment. There wasn't anything that I could come across and, sort of, government officially saying temperature testing was a requirement and I don't think that it is. But it is certainly a measure that the employer can take in order to demonstrate and maybe satisfy employees that they are doing their best to provide a healthy and safe work environment, and certainly to discharge those duties.

When it comes to, sort of, temperature tests, and my understanding is that, you know, displaying a high temperature is one of the main symptoms of a COVID-19 infection. There are other symptoms of it as well. Equally, we always have to remember that we hear about these people that are carrying the infection but display no symptoms, whatsoever. So, certainly, I don't send that a temperature test is going to be the, be-all and end-all when it comes to satisfying yourself that an employee either is or hasn't been affected by the virus . . .

Scott: Yeah, I've . . .

Seamus: But I think that . . .

Scott: No, I was going to say that I've had a high temperature hundreds of times in my life and not once has it been COVID. So, you know, those other things that people catch that give them a high temperature, it doesn't mean to say they've got COVID. But I think what a lot of employers are thinking is, look, if you go in with a high temperature, then it could be COVID because you don't know. And therefore, you're putting a lot of people at risk with a life-threatening disease as opposed to me having a cold when I have a temperature or something like that in the past.

So it is a bit different but it's also very sensitive data and you shouldn't be keeping it for any length of time. There's a guidance from the ICO, the Information Commissioner's Office that we published in today's Friday weekly review there going on, simply, on those facts about temperature testing and what employers should do about it. You know, and again, one of them is, why are you keeping it? I mean, and in Legal Island, there's not many of us, so we were actually thinking about, well, if you want to do it, then trust staff to take their own temperature, and that way, the employer doesn't keep the data but you trust them not to come in with a high temperature. But, maybe in a meat processing factory, you know…

Seamus: Exactly, exactly. And that's it. I mean, on the other side of it as well is that, you know, not everybody is going to consent or going to be happy to have your temperature tested and you're really relying upon either two forms in order to, you know, get the temperature test done. One would be that employees would agree voluntarily to having their temperature taken or the second one is just that there's some sort of policy and procedure in place in relation to temperature checking.

And, like, given that, you know, I haven't come across, or I'll put it this way, I haven't come across a policy and procedure where it specifically mentions the ability for the employers to take a temperature, but there can be some helpful policies and procedures in place. And if you really think about the consent that would be needed would be similar to what we would normally look at for having an employee medically examined and things like that so there's issues there.

And, I mean, I'm aware of one client of mine who had contacted me because there was an employee that wasn't happy in relation to the temperature checking. I'm not sure what the reason was in relation to that, but it seemed to me that it was certainly down to that there had been a lack of communication at the work place about the necessity for it. And I think that the employee had been taken by surprise when someone shined a digital thermometer at them and, you know, they were concerned about what was happening and wouldn't consent to it.

So I think, look, certainly, you know, the easiest way to get these cases or to get the temperatures checked is by way of the employee agreeing to do it voluntarily and there've been consent in relation to it. I think it's an idea to make sure that you check your staff handbook, see if there's policies and procedures that will assist you that could be helpful, sort of, broad wording that you could rely upon, perhaps, in the staff handbook.

But I think communication about it is key, and I think you need to explain to your employees and, you know why, and who it is that you wish to monitor. I think there needs to be an explanation that the reason for it is, you know, the necessity to provide a healthy and safe work environment. Yes, it's not going to be the answer and it's not going to be the cure in relation to all of this, but, certainly, it's an active step that the employer can take to try and manage the risk of infection, and it might just assist and help employees understand and realise that the employer is doing their best in that regard.

I think you need to be careful if an employee doesn't agree and there's no contractual right, I think that the bottom line will be that taking the employee's temperature is going to be unlawful if you force it. And I would advise against forcing the taking of temperature or threatening disciplinary proceedings if they refused it. I think it's different if there's a contractual right and the employee could be in breach by refusing to be tested. But other than that, I think that the employer maybe has to look at, you know, in terms of the justification, maybe the role that the employee is performing. If the role is where you're going to have maybe in a factory where there's going to be, you know, a lot of people standing reasonably close to each other, you know, it could be sensible to do that.

Definitely, the employer needs to keep an eye on the official health advise that the government are issuing. And possible alternatives, actions to the testing would be to say, well, if they're not willing to test that, "You know you're going to have to look at self-isolation." Or if they're demonstrating or if they're coming with symptoms of the virus, that you're imposing that self-isolation phase at that point.

Track and Trace System – Data Protection Implications

Scott: Okay. Could I come in there and maybe, Seamus? We've had a question which is not too dissimilar, I suppose, but it expands it out a little bit. And it's to do with the track-and-trace system. It's saying here:

With the new track-and-trace system, what do you do if an employee does not agree to you passing their details onto the NHS?

Seamus: Yeah, that's interesting. I mean, my understanding is that we won't to have this, sort of, full track-and-trace system in place until the end of July. But if the employee doesn't agree or provide their consent, my view would be that, we know that under GDPR there's exemptions and there would be a public-interest aspect, I would have thought, in relation to making sure that that information is passed on. And I think you could rely on one of the exemptions under GDPR in order to provide the information.

Scott: Okay. Yeah, there's clearly sensitive and difficult stuff that you're in there because you've got, I suppose, one requirement which is the health and safety of all the workers on the one hand against the data protection rights of individuals and the other, and we have no idea what tribunals are going to look at those things in future.

Maintaining Social Distancing in the Workplace

Here's another question that's come in here:

I work in childcare. We will not be able to practice social distancing at all times but are providing PPE. We've got reduced numbers of staff and children, etc., to minimise risk. A member of staff has given me a letter saying she will only be able to come back to work if we can guarantee social distancing, which obviously cannot be guaranteed. Does this, in effect, mean she will not be able to return to work at any stage (until a vaccine is available)?

Seamus: Well, potentially, it does. But in saying that, whenever the query says that their staff member has provided a letter, I think I would like to know what the letter is. Is it a letter just from the employee saying, "I can't return to work unless there's social distancing"? Is that the employee's stance, and it's not a reasonable stance to take? Or is it a medical letter saying that, you know, there's medical advice here to, sort of, set out and provide some validation to that position? So I'd like to see what the letter is or what form the letter takes.

But I think if we look at it on the basis of assuming that it's some sort of medical letter, you know, there's various roles that we know about that social distancing is just not going to be possible, and there's lots of roles when you think about carers and nurses, and staff, and nursing homes, and things like that we're social distancing just isn't possible. And the idea is that the PPE is used instead to give some form of protection.

I think that if there's medical concerns, it raises a lot of issues about the employment position. And, you know, I would have thought that if where we're out at the minute, that this individual is not going to be in a position to return to work in the foreseeable future provided that, you know, there's a significant reason and that it's backed up by the medical evidence. And I would say, then is that the employee is unfit to attend work, and they would have thought to do normal sick pay scheme would be implemented. And if that's statutory sick pay, you could see that happening over the usual 26-week period. Or, alternatively, there is the option for the employer to use the furlough scheme in order to deal with that.

The usual position would also apply, and I would have felt like it's dependent on the nature of this letter. You know, the employer could look to seek a medical advice by occupational health in order to get a, sort of, update or an independent view in relation to the employee's stance that they couldn't return to work unless there's actual social distancing. I think the employer would also have to look at any reasonable adjustments because what strikes me about this is that if this person has a significant medical condition, there could be a disability here and you'll have to look at possible reasonable adjustments. And, certainly, your occupational health report would assist in relation to seeing if there are adjustments that could be made in order to facilitate the employee returning to work.

You know, if you have somebody here that, I think the position is that they work in childcare, well, is there a redeployment opportunity where they could maybe work in the office where social distancing could be maintained in the meantime even if that's just on a temporary basis? But, you know, there's options in relation to assisting the employee returning to work, and I think we have to deal with it on the same basis as would, you know, under normal circumstances.

Scott: Yeah. Every one of them was you take them on as a case-by-case basis. This could just be an employee who doesn't want to go back to work. You know, we discussed that before we came on the air as well. There are quite a number of people who, they'd much rather just stay on furlough than actually go back to work because they go quite used to spending time with the kids, and you know, hanging about, and not much spending your money or so 80% of your salary might be okay.

And we've had another question which is not, again, unrelated that's just come in here.

How do you handle an employee not wanting to return to work from furlough because she is pregnant? All health and safety guidance has been followed and homeworking is not possible given the job. Can the employer end furlough, as they are doing with all other employees as work as now available? If the employee is still not happy to return coming off of an unpaid leave or critical to the GP, and if certified, receive an SSP?

I suppose that's another question that comes in and we'll come back to people who have to quarantine if they've been abroad, Seamus, in a minute. But, you know, in order to get SSP, you've got to be showing symptoms or you've got to be, you know, get some kind of letter from the doctor, effectively, to say that it's not safe to return. I don't think there's particularly special position for pregnant employees. Although, participate in other areas where the job was a danger to pregnant employees, then they could all pay protected if there's no alternative work available.

Seamus: Yes. So I think that, you know, anything that I have come across in relation to pregnant employees is that, you know, I don't think the pregnancy in itself is enough. I mean, I think that, certainly, employers always have to, you know, have due regard to the welfare of their employees and take the individual circumstances of their employees into account. But there's nothing that I've read that pregnancy puts anybody at additional risk.

I do think that if there are specific medical circumstances relating to the pregnancy that cause issues and problems, then I think medical advice should be sought and provided to the employer in order to support that position. But I think that the employer needs to take a reasonable view. It may be that, you know, depending on the type of work, I mean, if it's someone that's pregnant and is an office job and it can be handled and dealt with in a very safe way and that you can have the precautions there, you know, that could be very different to maybe somebody that's in a high-risk area that maybe works in the hospital or works as a carer, or in some sort of home or [fold 00:26:41], or something like that where you're working with vulnerable adults, it could certainly be an issue.

So I think it's dependent upon, you know, what area that the employee is working in and what the business is in. And, again, there are other possibilities in relation to looking at, you know, redeployment, looking at, you know, temporary other work, working from home if possible. But, yeah, I think, certainly, the SSP issue is a tricky one and the pay protection may be the other way to go around that.

I suppose that the other thing I was just going to mention was that, you know, I certainly have had a lot of queries over the past two to three weeks as businesses started to open up with employees that the employer has maybe been disappointed in relation to their attitude to returning to work. You know, there has been some fantastic, if I say it like that, there's been some fantastic explanations from employees as to why they are unable to return to work.

And I think for employers, that has been disappointing given that, you know, in a lot of circumstances, the businesses are really struggling. You know, getting open and up is key for the business in terms of, you know, securing and protecting jobs as well. It's not just about making money and servicing customers, it's about protection of people's jobs as well. And I think employers, in some instances, and I have to say mind, is, it's the odd one or two. But, you know, the employers are disappointed. I think the position is that you have to look at the furlough scheme for what it is. And where an employee is deliberately refusing to come back to work, I think that you have to use your normal and policies and procedures in terms of dealing with that.

And I think that you also have to give consideration in those circumstances too, if there isn't work available to the employee and the employee is refusing, is it within the scheme and the guidelines of the furlough or the Coronavirus Job Retention Scheme, I should say, to retain that employee on furlough, you know? So I think that there has to be those conversations with the employees as well.

And, trust me, I've had a number of and queries where employees have been contacted and said, "Right, we're opening next week." And the employee has said, "Actually, I'm not in the jurisdiction, I, am," maybe, "in England and I've gone to live with a partner for a number of weeks." And the employer has been frustrated because, you know, strictly speaking, certainly under the terms and conditions in the furlough that this employer had, the employee really should have sought holidays in relation to that. And there's now questions being asked of, "Can I discipline this employee because they're not able to come back to work whenever I need them, and they're failing here in terms of their requirements under the contract of employment? They're breaching the contract."

So all sorts of issues that are rising up that are interesting. And I agree 100%, Scott, I think it's not a time for hot heads. I think it's taking each individual's circumstance and dealing with it individually.

Scott: Yeah. It's fair enough because there will be some people who are genuinely terrified. I went back to work on Tuesday for the first time since February. We were in an online workshop and there were, I think, five of us in the office. It was the first time I've seen five human beings in one place, it was a shock, you know? I was happy to go back, but there would be, definitely, other people who, you know, they haven't left the house.

Self-Isolation on Return from Abroad

I know people that have has messages delivered and so on, so there's definitely ... There are number of questions coming in here, and one of them, I'm going to hop on, Seamus, is to holidays.

If an employee returns from holidays from a destination which requires a 14-day quarantine period," I know you're going to chat about the difference between NI and England in a minute, "how should this be treated by employers in terms of payment and leave, SSP as they're self-isolating, unpaid, or additional annual leave? And where there is no 14-day period, can employers enforce a 14-day quarantine if they have strict infection and control measures?

So that's a two-prong thing. You've got somebody coming back from holiday, they may be required to do 14 days. But even after, you know, the travel corridors, I'm assuming the left in the Northern Ireland, like they're going to be an England, can the employer say, "No, hold on a second, we've put stricter standards here?" And what would happen in that circumstance?

Seamus: Yeah. Well, look, the general position, I'm going to cover the general position as I understand it at the minute. If someone has gone out of the jurisdiction and in Northern Ireland, my understanding is that a quarantine period will apply if you return back to the jurisdiction, and that quarantine period is for 14 days. And that's the general position from the 8th of June. There is exceptions to that in that, if the employee has travelled to mainland GB, Isle of Man, Channel Islands, or also into the South of Ireland, you don't need to quarantine for coming back from any of those destinations.

Outside of that, the position in Northern Ireland is that, if you have travelled beyond that, whenever you return, you must do the 14 days in relation to the quarantine. And the position has changed or it hasn't changed yet, but it is going to change in England. BBC reported this morning that in England, the government has said that there's just over 50 countries where you can travel, and you can come back from the 10th of July and you don't need to quarantine. You know, whether or not that that follows suit in Northern Ireland, I don't know at this point. Probably, as we seem to follow quite a bit of what has happened initially in England and Wales and then coming back to Northern Ireland.

So I think that there could be change on it. But the minute the position is that you have to quarantine for the 14 days, it will be dependent upon where the employee has travelled to. And just so that we're aware of it, what that means is that, during that 14 day period, when you arrive home in the airport or wherever it is, you have to fill out a form and you have to inform the address that you're going to be living at for the next 14 days, inspections and checks can happen to make sure that you are at the address at any time and there could be subsequent fines and prosecutions if you're found to be breach.

But what that means is that, the individual can only stay in that place of accommodation for the 14 days, and they can only leave that place of accommodation for urgent medical treatment, for support from social services, food and medicine, if it can't be delivered by a family or a friend. They can attend a funeral of a close relative or for some other compassionate reason, or if there's an emergency, i.e., if there's a fire in the building, they can leave. So it's quite tight in relation to what they can do within 14 days.

And that does throw up issues for employers, because if someone says, "I'm going to go on holiday." And if it is one of these travels to your country, then you're going to have to quarantine, that's going to have to be factored in. But let's not forget that the business needs to be aware about what staff it's going to have, and if that person isn't going to be able to return to the workplace, who is going to do the work? Maybe the work can be facilitated, and it can be completed at home but it does create problems. And the key thing for me, again, is back to communication. There needs to be a discussion with the employee as to what is happening, where they're going to, and what the implications of that will be whenever they return home. And so it's by having an open discussion about the holiday plans and what the proposals for quarantine could potentially be whenever they return. And the impact that that's going to have upon their team, their work, and the business.

When it comes to statutory sick pay, from what I have read, it seems to me that it's unlikely that the government are going to include post-holiday or a travel-quarantine as a ground to be able to claim statutory sick pay. The existing rules, I think we just mentioned in the last question, though. The existing rules are only, if it isn't known or reasonably suspected that the individual has been in contact with a case of, or a relevant infection, or contamination. So just because you've travelled, it doesn't mean that you have been infected. It means that you're at risk and that's what the imposition of the 14-day quarantine period is. But it doesn't seem, on a strict reading of the guidance in the legislation, that you're going to be able to naturally claim SSP for it. That gives us the option. And if we're looking at annual leaves and what the employer can and can't do about that.

One option is that the employer could seek to impose a policy that if you have travelled overseas and you're, that that 14-day quarantine period will have to be taken out of, either your holidays or it'll be an unpaid-leave period. Those are, I think, two options. And the slight concern is, and it is only a slight concern. But the concern would be that if you do impose that as the employer, is that a unilateral change of terms and conditions? Does undermine a breach of contract? Could the employee resign and claim constructive dismissal?

Now, I think most employees would accept, you know, if there was holidays being provided, they probably would accept that rather than resign. But it still is there as a risk. And then you have the situation of, if the employee insists on travelling and refuses to use any more of their annual leave for quarantine. You know, where does that leave the employer? At that point, if you enforce it, you could end up, you know, potentially with a tribunal claim. We know that the employer can be . . .

Scott: Maybe in the circumstances here, you know, where there's not a lot of jobs and we're heading into a recession, most employees won't be likely to resign and claim constructive dismissal. If they're not attending work and they don't get paid, then I think most employers would probably just take the chance. But, hey, that is up to employers.

Handling Disciplinary Matters During Covid-19

We've had another one, just for your own issue there, that's coming here.

What do you advise in relation to pending disciplinary for a hearing, presumably a process, for a shielded employee? So that's one who's been told to stay home with an underlying health problem.

I understand that of 6th of July, a shielding employee can meet up with up to six people socially distance. I was going to go ahead and arrange a disciplinary hearing. Any advice?

Seamus: Well, my understanding is . . .

Scott: I don't know if that would have been much of a social occasion, but, yeah, social distance or doing it remotely by Zoom or whatever.

Seamus: Yeah. I mean, you can meet as a shielder, or you can meet socially but it has to be outside. I would be very hesitant in my approach there. Shielding is going to be paused from the 31st of July. And I would have thought that either you wait until the pausing of the shielding position or alternatively you deal with the disciplinary via remote hearing. I would be very cautious to advise anybody to bring someone that is shielding into the workplace. I think the government legislation and the guidance is quite clear on that. And I think it goes above and beyond that any shielders that are returning to work, that the employer is going to have to, you know, give that special consideration and make sure that there's a risk assessment done. I think, probably, it's back to the point earlier on that shielders are likely, I'm not saying that they all will do, but they're likely to fall within the realms of a disability and you could be looking at potential claims under DDA if there's issues arise with the shielders in returning to work. So, again, it's a cautious approach.

Scott: A similar one here that's just popped up here.

Can you refer employees on furlough to occupational health before shielding is possible or is it best to wait until after the 31st of July?

Presumably, it's best to wait because even occupational health with them leaving the house and having to get to the wage?

Seamus: Yeah. Well, it's, certainly, all of the occupational health appointments that I'm aware of over the past 12, 14 weeks have all been done via telephone call. And, you know, I would have thought from an employer's perspective, it's better to have a face-to-face. I mean, you know, you're going to get a better report from that, so I think it's better to wait until the shielding is lifted.

TUPE During Furlough

Scott: Okay. We go to a different one here that came in this morning, I think it was, actually.

If you are in a TUPE situation and you are the transferee, i.e., the new owner, can you avail of quarantine furlough if they employees have been on furlough with the transferrer, i.e., the one that sold you the business?

The transfer date was the 30th of June. So very recent, beginning of last week, somebody took over a new business and they took over the old employees. Do those employees remain on furlough even though they're new employees with the new employer, or does all their service transfer and the furlough scheme, as you would expect under TUPE?

Seamus: The position of the guidance and is fairly signed in relation to the other. And it does say that as you transfer during the furlough period, that you do transfer, what's all of your rights and on the same terms and conditions. So for me, the guidance is very clear that if you transfer under TUPE during this furlough period, provided the employee has been on furlough prior to the 10th of June, there is the ability for the new employer to continue the furlough scheme for that employee. You know, they'll already have been registered for that employee. So I don't see any issue arising in relation to that at all.

Furlough Fraud

Scott: Okay. We've heard a couple of things that have come in recently, one on fraud. So maybe have a discussion about that in a minute. Furlough fraud or inadvertent mistakes. But we've only a few minutes left. So first of all, we've got a question here about:

The treasury directive issued last week which casts some doubt on whether you could actually put people on notice of redundancy whilst they're on furlough and claim the 70%, or whatever it happens to be, at the end of the notice period?" So what's your understanding on the position with the treasury directive, first?

Seamus: Well, look, this is the third treasury directive that we've got, it was issued on the 25th of June. And the concern that arises from the treasury directive is that it says that integral to the purposes of the job retention scheme or the grants that were used by the employer to continue the employment of employees. And that has flagged up a question as to whether or not you could, basically, use the furlough scheme during this period.

Previously, the indication from HMRC was that employees could be served with notice during furlough, and claims made under scheme in respect of the relevant proportion relating to their notice pay. And my advice in that was always, to my clients, "You could use the furlough scheme in that basis, but you wouldn't top it up because the notice is a contractual entitlement." And the government guidance doesn't expressly set out the purpose of the scheme . . . Oh, sorry, it didn't expressly say that it the purposes can be avoided nor does the direction. The employee guidance that has been issued by the government clearly states that employers can still make employees redundant by their own furlough and afterwards.

But, interestingly, I did see Michelle McGinley had liked a post on Twitter from Lewis Silkin Solicitors in London just last night. And they said they had received confirmation via Twitter from HMRC to confirm that employers could claim furlough grounds for employees during their notice period. Now, we take that for what it is. We know that there's been these confirmations of things in the past and then there's been new guidance and things have been issued. But I just thought it was helpful. Michelle is always pretty helpful in her comments to the social media side of things. I follow her. I noticed they picked up on that last night. So there did seem to be confirmation from HMRC that you could use the furlough grounds during the notice period.

Scott: Okay. Thank you very much. That's Michelle McGinley of the EEF. You're chatting in right there if anyone wants to follow her. I see she's been sending things in there. But also thanking her for little shout outs. Quickly just about the fraud. There is a fear that the employers could get things wrong and therefore have to pay the money. But there's this 30 day period where you can fess up. So, quickly, cover that one . . .

Seamus: Yeah. So just before we end in relationship that there's this window to confess, as it's called. It's always a good idea in life, isn't it? But there's this aspect that there would be concerns in and around and where there have been . . . Obviously, look, we know that revenue are going to come down hard, they have set up processes, there's legislation going through parliament at the minute in relation to providing revenue with powers in relation to any fraud that has taken place over the furlough scheme. They are going to look at that.

The option here is that you have a window to confess and pay back any monies. I think the reality is that employers will have made some mistakes. They'll have been genuine mistakes. It'll not have been that they were attempting to defraud. And there is that opportunity where you can have that discussion with Revenue and the monies can be paid back. The bigger aspect is that if it's been done deliberately, potentially criminal prosecution could be available there. You know, I think the tone and what we're seeing from the judiciary is that they've taken anything to do with breaches very seriously. And that's likely to follow through on a criminal aspect. But I think where the employer . . .

Scott: It's very good that you . . . I was going to say, it's very good that you mentioned criminal activity there and the police run past your window.

Seamus: I know. Did you hear that awfully? I have that . . .

Scott: It's like we just throw this together. It's all planned, isn't it?

Seamus: But, yeah, I think that there's this window of confession. I think where you take a straight-forward approach where there has been errors made and you notify Revenue of it, I can't see there being a huge issue in relation to it. The bigger concept would be that if you pick up on these things and you don't report them, you're putting at risk that they'll pull back the furlough monies for that employee or alternatively, if it's a significant risk that they are as significant breach that they could look at, you know, recall on all of the furlough grant monies. And what should be potentially catastrophic for any business. So, you know, honesty is the best policy, as they say.

Scott: Okay, thank you very much to Seamus. Thank you very much to everyone for listening. Our next webinar will be on the 7th of August so send any questions, then, that you like. You can also contact Seamus or Stewart anytime, or you can contact Rolanda at Legal Island as well. I don't think I covered up the . . . It's like we're doing a new induction e-learning thing as of next week. We don't want to miss out. It has been the biggest selling e-learning thing that we have ever done. The annual reviews this year are on the 11th and 12th of August. They're going to be online and it's going to be over two days so please remember that.


This article is correct at 03/07/2020

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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