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Working during furlough: what is and isn't legal?

Unclear of the rules around furloughed employees undertaking work? Joanna Chatterton, partner and head of the employment team at Fox Williams LLP, explains to both employees and employers what is and isn’t legal

The government’s furlough scheme has been a lifesaver for many UK employers, but businesses in the travel sector are frustrated at its lack of flexibility.

 

Furloughed employees should not be working and have to be furloughed for at least three weeks.

 

Breaching the requirements could lead to businesses repaying the monies provided under the furlough scheme and having to deal with HMRC imposing fines, penalties and charging interest. So, what exactly are the rules on furloughed employees working?


(a) They can’t work for the employer who’s asked them to take furlough leave

 

The employer can’t ask furloughed employees to “to undertake work for, or on behalf, of the organisation”. This includes providing services or generating revenue. They remain employees, but ones that are not working. They should not, for example, return for a few days to help meet a rush in demand for refunds.

 

Employees cannot be asked to do work “off radar” even if it’s to help the business get through the crisis. Although not expressly confirmed in the government guidance, we believe employers can ask questions of their employees, for example about work undertaken before furlough where needed to help working colleagues, or where an employer is investigating a problem or disciplinary issue which an employee has knowledge of.

 

If answering the odd question morphs into undertaking tasks for an employer, this breaches the conditions for furlough leave.

 

Government guidance confirms that company directors are eligible to be furloughed and, although prohibited from working for the company, they can continue to carry out their statutory duties.

 

(b) They can volunteer

 

Employees can take part in volunteer work while on furlough provided that their work as a volunteer does not generate revenue for the employer. The government has not been clear about whether furloughed employees can volunteer for their employer.

 

(c) They can undertake training

 

Furloughed employees can undertake training to improve their skills and some travel businesses have required furloughed employees to do this. They must be on at least the National Minimum Wage or National Living Wage, as appropriate, while training. Training “on the job” is not permitted as this would amount to “undertaking work”.

 

(d) They can sometimes work for another employer

 

If the employee already has two jobs, and is on furlough leave from one, they can continue working for the other employer as normal.

 

Government guidance states that you can, “if your contract allows”, “undertake other employment while your current employer has placed you on furlough”.

 

This seems surprising, but is possibly because the government are prioritising the need for people to fill essential roles in retail, food, medical, farming and care sectors.

 

If the employment contract does not allow the employee to work for another employer, the employer may agree to amend the contract to allow this, however the furloughed employee must make sure that they are able to go back to work for the employer who furloughed them at the end of the furlough.

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