Can an employer require employees to use their annual leave during the coronavirus outbreak?

Yes, an employer can require employees to take a period of annual leave during the coronavirus outbreak, provided that they give the employee the required notice, unless there is an agreement to the contrary. This applies only to statutory minimum leave entitlement of 20 days. An employer may do this in the current crisis to avoid employees all taking their accrued annual leave at the same time later in the year.
 
BUT
 
The employer must give the employee a period of notice at least twice as long as the period of leave the employer normally requires employees to take.

How is annual leave calculated and paid if I am on Furlough?

The HMRC tweeted this week that it is possible to take annual leave when on furlough, and it must be paid at full pay. The same is true of Bank Holidays but, at the time of writing, our information on calculation comes from the Tweet of the HMRC.

Can Furloughed employees take on other jobs? Specifically:

From employee: if there is nothing in the employment contract to prevent me working for another organisation at any time e.g. whilst on leave from my main job, why should I not work elsewhere when on Furlough?

From employers: will I lose my funding if my furloughed employees receive payment through other employment? And what if they decide not to come back?

The Government has announced that it is permissible for furloughed employees to take on additional employment, provided there is no link to the main employer. This is presumably to shore up businesses like courier companies, fruit farms, etc. who need more staff. Consequently, the funding remains in place no matter how much additional salary the furloughed employer receives. However, the contract must allow for this. Many contracts require employees to gain their main employer’s permission before committing to a second job, in which case the organisation can decide whether to allow it or not. They can also decide to waive a contractual clause banning second jobs, but they cannot forbid it if there is no relevant clause in the contract. Organisations worried about losing employees can legitimately require furloughed staff to rotate with working staff and/or complete training (provided it does not attract profit). Employees given permission must be available to return to the main employer either immediately, or on agreed notice, when work becomes available again.

When will we start receiving reimbursements under Furlough?

HMRC have said that the online portal will open on 20 April, with the first reimbursements made on 30 April.

What do we do about Furlough when there is a TUPE move in play?

We are told that employees who are TUPEd to a new employer after 28 February will be eligible for furlough.

I’ve got an ET hearing scheduled, what will happen; will it take place and, if so, how?

Case management preliminary hearings already commonly take place by telephone. This is possible because they usually can take place in private. Substantive issue preliminary hearings are usually heard in public as are Final hearings. Employment tribunals are mostly not yet equipped with the sort of audio and video equipment that would enable recordings and broadcasts or even transcripts of hearings so we cannot be categorical at this stage about those hearings that are normally public.

How does Furloughing and sick pay work?

Employees claiming SSP cannot be furloughed until the payments cease. If furloughed employees report that they are unwell, they must be put on SSP, for which they are now eligible from day 1. Employers can switch employees from sick pay to furlough and vice versa, although this should not be abused (see above on abuse) by using furlough to ‘top up’ small amounts of SSP for short term absences where Furlough pay is more than SSP. Employers can furlough ‘shielding’ employees e.g. those that are not in receipt of sick pay but are identified as at higher risk because of a pre-existing medical condition. Organisations with fewer than 250 employees can claim a rebate for up to two weeks’ SSP per employee for periods of sickness starting on or after 13 March 2020, once the scheme is up and running.

What happens with Furlough for those with visas?

We are told that employers can furlough employees on all categories of visa.

What happens about reclaiming NI and pension element on a furlough salary?

Reclaimable NI and pension elements are on the furlough salary, not normal salary.

What about the extra costs I face as an employer by administering furlough?

No part of the reclaimed money may be used to fund benefits; the employee must be paid in full with no deductions for fees, administration charges and the like.

I run a small limited company, what happens about my VAT payment?

We must still submit our VAT returns on time, but we do not need to tell HMRC that we are deferring our payment. If we pay by direct debit, we would need to cancel that.