The UK is now in its second period of lockdown. Many businesses have been forced to temporarily close and, others have less work for their staff to do. Businesses in the construction industry exposed to several developments stalling sites and the general malaise in the property sector as a whole, are needing to put business protection measures in place, including furloughing some staff.
Last week Barratt, Taylor Wimpey, Countryside and Crest Nicholson, among others, all confirmed that they had furloughed staff in response to the crisis and the shutdown of their construction sites.
If you are a worker in the industry, what do you need to be aware of if you have been furloughed? And if you are still at work, what else should you know in terms of your rights?
We’ll start by looking at the furloughing scheme – or the coronavirus job retention scheme, as it is officially called – and explain how works, which employees it applies to and how they will be paid.
What does ‘furloughed’ mean?
If you are furloughed you’ll remain employed but will remain at home and won’t be asked to work and your employer will submit a claim to HMRC to pay up to 80% of your wages.
You can be furloughed for a minimum period of three weeks and the scheme will be open until 1 June but may be extended.
Who can be furloughed?
The main criterion is that you must have been on your employer’s PAYE payroll on 19th March 2020. It does not matter if you work full or part time, have flexible working hours or are engaged as an agency worker. But you cannot be furloughed if you’ve agreed to work fewer hours or are still doing some work for your employer.
Anyone who is taxed as a self-employed contractor also cannot be furloughed and will have to look to other ways of claiming support from the state.
Can I refuse to be furloughed?
Yes – your employer can only furlough you by agreement. We recommend that you think carefully before turning down a request to furlough, however, because if you say no you could be made redundant or laid off (if your employer has the contractual right to do so) if there is no work for you to do. If you are made redundant, you will only receive a redundancy payment if you are an employee (as opposed to a ‘worker’) and have worked for your employer for at least two years.
How much will I be paid?
Your employer can claim a grant to cover up to 80% of your earnings, subject to a maximum of £2,500 gross per month. This figure is based on your regular pay which may include some overtime payments but will not include any bonuses that usually form part of your salary. Furlough pay will be subject to tax and National Insurance as normal.
If you are paid a salary, the furloughed figure will be based on the payroll as at 19th March 2020. However, if your monthly earnings vary and you’ve been employed for a full year, your employer will calculate your salary by either using the amount you earned in the same month last year, or working out your average monthly earnings from the last year.
If you’ve been employed for less than a year, it will be worked out by averaging your monthly earnings from your start date. If you’ve only recently started work, your employer will pro-rata your earnings from the information it has available.
Your employer can top up your salary, but is not obliged to do so. If you agree to being furloughed, you are accepting a temporary reduction in your salary.
Is the grant paid to me or to my employer?
The money will be paid to your employer who will then pay it to you (unless they’ve already done so). They can’t make any deductions from this other than for tax and NI.
Once you are furloughed, you agree to receive a reduced salary and your employer should continue to pay this to you in accordance with its usual payroll. However, if your employer is unable to meet their payroll costs, they will have to wait to receive money from the government before paying you. If they can’t pay you, they should let you know (and ideally, get your agreement).
The scheme will pay wages from the first day of your furlough, so if you don’t get paid straightaway you will receive the money – but this may take a few weeks, which will cause many people problems meeting their usual expenses. The scheme portal opened on Monday 20th April and once your employer submits a valid claim, they should receive the money with a week.
Can I volunteer if I am furloughed or work for a different company?
Once you are on furlough you will not be able to work for your employer, but you can undertake training or volunteering work subject to public health guidance, as long as you’re not making money for your employer or providing services to it. You can also potentially work for a different employer.
It is important to remember that while you are furloughed, you remain an employee and whilst you may also potentially work for a different employer, your contract of employment may restrict your ability to work for anyone else. If in doubt, speak to your employer and take legal advice if necessary.
I’m on sick leave and only receiving statutory sick pay (SSP). Can I be furloughed instead?
If you are on sick leave, self-isolating or shielding you should get SSP, but you can be furloughed after this. SSP is paid at the rate of £95.85 per week.
Can my employer make me redundant during or at the end of my furlough?
Your employer can still make you redundant while you’re furloughed or afterwards. However, any redundancy should be in line with normal redundancy rules and procedures which, depending on the numbers of people at risk of redundancy, may require collective consultation of 30 or 45 days. If you are made redundant you should receive your contractual notice pay and, if you’re an employee who has worked for the same employer for two years or more, a redundancy payment.
What about my holiday entitlement?
The current guidance says that employees will continue to accrue holiday as normal and can also take holiday when you are furloughed. If you’ve already booked time off during your furlough your employer doesn’t have to cancel it, even though the concept of being on holiday is likely to be very different to one you anticipated. Your employer can also give you notice that it wants you to take some of your holiday during furlough. Many employers are doing this so that when things get back to normal, most of their staff are working rather than on holiday. However, it is worth checking the employee guidance at www.gov.uk as this is regularly updated and the government has said that it is keeping the policy on holiday under review. Thinks could, therefore change.
If you are not able to take all of your holiday because of the coronavirus, you may be able to carry over up to four weeks into the next two holiday years.
You must receive your normal pay during any period of holiday. This means your employer must top up the wages it receives from the furlough scheme. The government’s guidance on holiday pay during furlough is unclear. My view is that the calculation should be based on your pre-furloughed salary, and for the first four weeks your holiday pay must include regularly worked overtime, allowances and any relevant commission.
Can I still use my work email account while furloughed?
A furloughed employee is not allowed to carry out any work for their employer. Sending emails from your work account could amount to work and jeopardise payments under the coronavirus job retention scheme. While there is no requirement to disable a furloughed employee’s work email account, some employers are doing so to avoid the risk of the employee checking and replying to emails, with all the best intentions.
What if I haven’t been furloughed and am still expected to work on site. What are my rights then?
Not all sites have been closed. Indeed the government is encouraging as many of them to stay open provided they can be worked safely. All employers have a duty to protect the health and safety of their staff and must undertake risk assessments to keep you safe. These have to be updated to deal with the risk of staff becoming infected with coronavirus.
The government has also published guidance to help employers understand the social distancing rules. In relation to construction it says that if the work you are doing does not permit you to follow the social distancing guidelines in full, your employer should “consider whether that activity needs to continue for the site to continue to operate and … take all mitigating actions possible to reduce the risk of transmission”. These include providing you with access to water and soap so you can regularly wash your hands (or provide hand sanitiser), minimising face to face contact with your co-workers, keeping teams as small as possible, opening the windows of enclosed machinery or buildings for ventilation and keeping touchpoints such as doors and buttons clean.
For more detail, see the Site Operating Procedures issued by the Construction Leadership Council, which are based on Public Health England guidance.
If your employer is not following these guidelines, you should raise your concerns with your manager. You have the right to leave your place of work if you are exposed to a serious, imminent and unavoidable danger and are protected under the Employment Rights Act 1996 if, as a consequence, you are treated unfairly or are dismissed. Take advice if you are unsure of your rights.
About the author: Joanne Moseley is a professional support lawyer in Irwin Mitchell’s employment team