Q&A – Furlough, What’s Next?

Q&A – Furlough, What’s Next?

According to Government statistics, as of midnight on 14 May 2021, 11.5 million employees’ jobs had been furloughed through the Government’s job retention scheme, at a cost of £64 billion.

 

“I have been on furlough since the last lockdown in December and my employer wants to speak to me about my future. What should I do and what are my options?”

The Coronavirus Job Retention Scheme is coming to an end on 30 September 2021 and employers will have to start contributing towards the costs of furlough from July 2021 so it is possible that they will be starting to look at their post-Scheme staffing requirements now.

However, without knowing more about someone’s situation, it is difficult to guess what an employer might want to discuss. For employers facing the end of the furlough scheme, having made use of it, the most likely possibility is that they want to bring their furloughed employees back into the workplace and want to discuss this with them. It is also possible that they are facing difficult decisions around the business and its sustainability and want to discuss with employees either modifications to their existing employment relationship or, worst case, the possibility of making redundancies.

Unless the employee meets with their employer, they will not know the purpose of the proposed meeting and therefore will be putting it off and possibly putting themselves in a position of less knowledge than their colleagues. As such, we would usually recommend that an employee make themselves available for the meeting, provided the arrangements are reasonable and they have had reasonable notice of it. For example, it makes sense to ask for a bit more information about what the meeting is about before attending and, if there is a suggestion that it is about changes that will affect the employee’s position, they might want to ask for the opportunity to have a companion attend with them.

Practical steps

It’s difficult to know what options there might be because that will depend on the nature of the meeting but here are some things an employee should be aware of so that they are armed with some understanding of their legal rights.

  • they are generally entitled to be accompanied by a fellow worker or trade union representative if their employer wishes to meet with them about the possible ending of their employment.
  • If an employer is looking to change employees’ terms and conditions of employment in any (material) way, they should be seeking employees’ consent/agreement to this. As such, an employee should not feel that they have been made to agree to something they are not happy about. Ultimately, if the employer can absolutely justify the change(s), they may be entitled to bring the employee’s existing employment terms to an end and offer to engage them on the new terms, but they will want to avoid doing this if at all possible.
  • If an employee has less than two years’ service (i.e., two years’ employment with the same employer), they have fewer rights and, in most circumstances, do not have the statutory right not to be unfairly dismissed. That means that, as long as they receive adequate notice, their employer is entitled to end their employment.
  • If they have two years or more service, they have the right not to be unfairly dismissed and therefore if their employer is considering making them redundant, they are entitled to a fair redundancy process which will involve being consulted about the proposed redundancy.
  • If they have two years or more service, they are entitled to a statutory redundancy payment. You can calculate what you are entitled to by way of redundancy payment here.

If your position is at risk of redundancy, there are also some questions that you can ask about the process:

  • Is anyone else at risk of redundancy within the business?
  • What pool are you in for the redundancy selection process and who else is in it?
  • What are the selection criteria for assessing those at risk?
  • What opportunity/ies will you be given to give feedback or views on your position?
  • If your position is identified for redundancy, is there an appeal process?

Going through a redundancy process is never easy but if you can keep your head as clear as possible, you may be able to challenge any decisions in a constructive way and might be able to save your position.

Should you have any questions on anything covered in this article or employment matters generally, please get in touch with Dawn Robertson at dawn.robertson@rooneynimmo.co.uk or on +1 44 (0)7779 939 665.

An article along similar lines to the above appeared in the Daily Record, The Money Doctor column by Fergus Muirhead on 28 May 2021.

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 This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.

 

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