Updated on 06 May 2020
THSP have received many questions relating to both the legal position and recommendations for safe working practices during this coronavirus outbreak. Here are some of our latest updates. If you would like to view the full collection, please either complete the contact form, or log on to your MyTHSP portal.
Can I make just one person redundant?
Redundancy can be tricky when the employer has identified only one person, for whatever reason, as redundant. It can be much easier if the employee has less than two years continuous service but there are still risks to consider, such as the perception the employee has been dismissed. They may consider it discriminatory or because they stand by certain statutory rights like whistleblowing in the interest of the public or raising health and safety concerns. These grounds can be automatically unfair. More than 2 years’ service then they can also throw in unfair dismissal.
Redundancy must be down to business reasons where the employees work has ‘ceased or diminished’, and not because of their performance, attitude or attendance. This could lead to a claim of unfair dismissal in Tribunal. Consider your options carefully, have a clear policy and route to follow. Have the right letters on hand, at the right time.
What happens to holidays when on furlough leave?
According to the 1999 Working Time Regulations a full time employee is entitled to a minimum of 28 days paid leave per year. In the UK we usually choose to fix eight of these days for bank and public holidays, but the right is for 28 days.
While on furlough leave holidays can be paid at 100% of normal pay, or the accrued leave can be deferred and taken later in the year. At this time we believe the furlough leave continues and does not break the period of continuity required to claim the grant.
The Government have also permitted that employees can carry forward a maximum of 20 days over into the next 2 calendar holiday years, to ensure leave is not lost and can be utilised reasonably over a longer period of time.
Can we place sick employees on furlough or do we have to keep paying them SSP?
The guidance says that an employee on sick leave – or any other form of unpaid leave – will not qualify for furlough. However, once the leave ends the employer will be free to designate the employee as furloughed. Indeed the employer would also benefit from no longer having to pay sick pay. This is something of an anomaly because it means that someone who is actually off sick with coronavirus will actually be worse off financially than a healthy employee who is sent home on furlough. We may see employees declaring themselves fit for work in order to be placed on furlough by their employer. Obviously it is important in such cases that the employee in question does not attempt to actually come into the workplace.
What if a furloughed employee becomes sick?
It is unlikely that an employer would be obliged to notify HMRC if a furloughed employee becomes ill. Indeed as long as the furlough lasts there is unlikely to be any reason for the employee to even tell the employer that they have developed symptoms.