Furloughed staff should not be doing any work, explains Travlaw head of employment Ami Naru
In a world which has been turned upside down by Covid-19 and which has raised many, many questions, “Furlough” stands out as still having more questions than most.
Find more business advice in Travel Weekly’s Coronavirus Resource Centre
The Coronavirus Job Retention scheme makes it clear that, when an employee is on furlough an employer cannot ask an employee to do any work that:
- makes money for your organisation;
- provides services for your organisation;
Furloughed staff can, however, take part in volunteer work (such as the NHS volunteer scheme) or training.
The most common questions that have been asked of the Employment team at Travlaw are usually around the following:
Can furlough staff still pick up emails and forward on key communications to managers, so they are not missed?
No, this would amount to work or providing a service to the employer. Employers placing employees on furlough need to make it clear that they are not required to undertake any work. A mechanism for emails to be monitored should be put in place during their absence.
Can a furloughed employee still work one day a week for us, if they are being paid 80% by the government and 20% by us?
No, during any period of furlough the employee cannot do any work for the employer. It is therefore not permissible that they are on furlough (4 days) and also working for the employer (1 day). An employee is either on furlough or not!
Can staff still join team meetings and “catch up” gatherings via video systems such as Zoom?
If the purpose and content of such meetings is work related, then no! This would amount to work and they are not allowed to do any work on furlough. If the purpose of these meetings is purely social, then yes as it is important for mental health and wellbeing.
What if staff are using personal e-mails to keep in touch with key customers or suppliers?
Again my view is that this would amount to work if the content is work related, as these are work contacts, even if this is done using their own personal emails. Of course the travel industry is a friendly crowd and lifelong friendships are made, so if a member of staff is using their own personal email to communicate on a social basis with these contacts then that would be okay.
Is training and development still allowed?
Yes, the government guidance states:
“Furloughed employees can engage in training, as long as in undertaking the training the employee does not provide services to, or generate revenue for, or on behalf of their organisation. Furloughed employees should be encouraged to undertake training”.
Employers may wish for employees whilst on furlough to undertake some online training for example, but for any period of training the employees’ wages must be topped up by the employer.
What does generate revenue mean in respect of training, whilst on furlough?
A good question that the guidance does not address. Surely all training is required by the employer as it is of some benefit! My view is that it is in relation to the immediate generation of revenue that would assist cash flow, and undermine the need for employees to be on furlough.
What about Directors?
The guidance makes it clear that statutory duties can be carried out. However a Director cannot provide services or revenue-generating work. Even with the concession to be able to undertake statutory duties, I believe that this needs to be narrowly construed and that furloughed directors should only undertake the minimum duties to ensure that the company is not in breach of its obligations under the Companies Act.
For example preparing returns e.g. VAT returns, maintaining the company’s statutory records or dealing with Companies House and preparing statutory accounts. Also thought should be given as to whether these statutory duties could be undertaken by a director not on furlough.
Dealing with suppliers, taking work calls, engaging in work related social media, marketing the business for survival would amount to work, which is prohibited whilst a Director is on furlough.
Can employees still read Travel Weekly during Furlough?
Most definitely YES! It is good for mental health and wellbeing. It is also important of keep abreast of what is going on in the industry.
The views above are my own and we really do need the government to provide some more clarity on this. I understand that HMRC are setting up a hotline on which employees can report employers, who ask staff to work whilst on furlough. In addition if it becomes evident prior to claims being processed that employers have asked employees to do work whilst on furlough, then such claims will be rejected.
Employers must keep a written record of a furloughed member of staff for 5 years, and I think that this is because HMRC will conduct retrospective checks for that period for any abuse. I also understand that depending of the severity of any fraudulent claims, there may be criminal sanctions….. Let’s wait and see!
For now the message is clear furloughed staff should not be doing any work whilst on furlough. I know that is not what we want, but that is the way the Government are implementing the scheme.
For further information please contact Ami Naru.