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The UK Government’s Coronavirus Job Retention Scheme - which has implemented the concept of Furlough Leave - is at the time of writing due to end on 30 June 2020.  The Chancellor, however, has already said that the Scheme will not be allowed to ‘fall off a cliff’ and it is widely expected that changes to the Scheme will soon be made.  Those changes might extend the Scheme for some sectors that are more adversely affected by the current crisis than others (for example, hospitality and aviation) or perhaps there will be the ability for employers to have employees working part-time, and part-furloughed.  Watch this space!

Whatever happens, though, as businesses and employers begin to consider how they will approach the end of lockdown, and to what extent they can interact with their employees in making those plans, we are increasingly being asked by clients to advise on what a furloughed employee can be asked to do. 

We consider below some of the issues which will face employers who want to retain their employees on Furlough Leave over the coming weeks.

The basics of what an Employee cannot do whilst on Furlough Leave

The Government’s guidance on which employees qualify for the Coronavirus Job Retention Scheme (“CJRS”) has continually developed since its initial release.  As at the date of this article, we are relying upon version 8.   For an employer to reclaim an employee’s wages, they need to be designated as a “Furloughed Employee”, the definition of which requires that they have been “instructed by the employer to cease all work in relation to their employment” (amongst other requirements).

On a basic level, the general rules for an employee to be deemed as “Furloughed” include:

• An employee cannot undertake any work for or on behalf of the employer, be that directly or indirectly, including providing services or generating revenue for the employer or any group entity;
• There is no minimum level of work which can be undertaken by an employee, meaning the surest approach is simply for any Furloughed Employee to undertake no work;
• An employee can undertake training, but this must not amount to the provision of services to, or the generation of revenue for, the employer. Any training must be directly relevant to an employee’s employment (and agreed between the employer and employee);
• An employee can undertake voluntary work, provided that it does not amount to the generation of revenue or the provision of services to the employer. Given the limited circumstances where an employee could “volunteer” for their employer and not provide services or generate revenue, employers should seek legal advice before asking any employee to volunteer directly with them or a group entity;
• An employee may work for, or volunteer for another independent organisation (subject to their contract of employment, any Furlough Agreement or Letter, or any other agreement between the employer and employee allowing them to do so);
• Where the employee works for multiple employers, the employee can be placed on Furlough by more than one employer, or can be furloughed by some employers and not others and
• Employees may take Emergency Voluntary Leave (“EVL”), as provided for under the Coronavirus Act 2020 and the Employment Rights Act 1996.

Furthermore, employees cannot be placed on reduced hours or be asked to work for reduced pay and be placed on furlough leave. It is a finite status approach – Working and not be deemed a Furloughed Worker, or not working, and subject to the above, being deemed a Furloughed Worker.

For more information on the Coronavirus Job Retention Scheme, and the process of Furlough Leave, please see our articles here and government issued guidance here.

Modern Employer Concerns

The general guidance above however, does not address some of the modern issues which employers face, such as employees use of social media and the varying of employment contracts to meet new business needs. Below we consider such issues in turn:

Can an employee generally tweet or use LinkedIn during Furlough Leave?

LinkedIn has become a forefront for professional networking in the modern workplace. It is important to consider that whilst it is a business platform, it is also used by individuals to show and promote interests that matter to them, and to network on a personal level rather than exclusively for their employer. An account is (in most circumstances) under the control of the individual, and not the employer.

If an employee is posting content which is entirely unrelated to their employment, their employer, or the work their employer undertakes, this should not be an issue. Use of social media in a personal capacity is not prohibited under the CJRS, and employers will not be punished for employees using their social media outside of a professional context as they would when normally engaged.

Can an employee interact with tweets or other marketing distributed by the employer?

Put simply if an employee is re-tweeting, sharing or otherwise distributing material produced by the employer, they are (directly or otherwise) providing services, and potentially generating revenue for the employer. It is a form of marketing, which is likely to provide the employer with a benefit.

On this question and the first on personal use, employers may be best served by asking the question: “Will my business benefit or gain (directly or indirectly) from the employee doing that?”

Where a post is purely personal, then the answer will be no. An employee posting a newspaper article which they find interesting, commenting that they are looking for temporary work as a result of being furloughed, or writing an article for their own distribution and with no links to the employer or their work is unlikely to be linked to the employer and the provision of work.

If the answer is yes, and the employer will benefit, then such posting or sharing is arguably the provision of services or generation of revenue. It is at its core, marketing. Employers should not direct employees to create or post material. This would almost certainly be deemed as providing services (creating something at the direction or request of the employer). As such content is then posted online, it also becomes a potential stream for generating revenue. Any client who instructs you because they saw that post (whether that is the sole or one of many reasons), results in the employee’s act generating revenue, and falling outside the definition of a Furloughed Worker.

Furthermore, any direction for an employee to do something would indicate elements of the employment relationship being active – this would be in direct contradiction of the Treasury Guidance, which states that an employee must “have been instructed by the employer to cease all work in relation to their employment”.

As these accounts are personal, what about employees posting or sharing content of their own volition, and with no employee instruction?

There is no sure way to prevent employees sharing content made by their employer, or posting content which may relate to an employer (for example posting on a Government scheme, and linking that their employer, say a financial adviser, can assist with the application process).

One option for Employers may be (either in their Furlough Agreements/Letters, or by subsequent agreement), to try and agree with employees that they will not share, post, or distribute content which directly relates to their employment or the employer whilst they are on Furlough Leave.

Whilst this will not with full guarantee prevent employees doing so, if such content is posted, this at least provides employers with a rebuttable position that they had asked employees not to do so, or conduct work, which increases the chances of the employee's acts being deemed as voluntary or outside their sphere of employment.

Employers should also ensure that those who are not furloughed, or are in roles related to marketing, do not share content which has been shared or created by furloughed colleagues.

Can an employee visit the office and see their colleagues?

At the time of writing, the UK is still in “lockdown”, with only “essential” travel (being a select number of reasons) allowed. For employment purposes, the only relevant purpose for travel is “travelling for work purposes, but only where you cannot work from home”.

Throughout the lockdown period, employers should ask those on furlough leave to remain away from the office or work premises. Allowing employees to travel to work premises when “furloughed”:

• is in contravention of the Government’s Stay at Home requirements, as a furloughed employee should “have been instructed by the employer to cease all work in relation to their employment” and therefore to meet this definition, they should not be travelling “for work purposes”; and
• risks employee’s being seen as using the “travelling for work purposes” as their reason for travelling outside of their home, and hence being engaged by the employer and not on furlough leave.

It is not possible (in all but exceptionally rare circumstances) to come to the office or a work premises and fall within both the Government’s guidelines on “Staying at Home” and being designated as a “Furloughed Worker”.

Once the lockdown restrictions are lifted or eased, travelling to and from work may not be in contravention of Stay at Home Guidance, though this depends on the exact approach taken. However, employees travelling to the premises could still be seen as them engaging in the workplace environment, and therefore employers should carefully consider if this is allowed, and take legal advice before taking any action.

Can we issue training to an employee to prepare them for an amended role upon their return to work?

The Treasury Direction on the CJRS states that “training activities directly relevant to an employee’s employment agreed between the employer and the employee before being undertaken” can be completed whilst an employee is furloughed. Such training must still not generate or provide services for the employer. Employees must also be paid at least their appropriate national minimum wage when training (this will usually be covered by the 80% furlough payment, but where minimum wage exceeds this, they will need to have pay supplemented to meet this).

If an employer is planning on varying a role held by an employee (perhaps due to temporary changes to meet business need and/or COVID-19 restrictions upon re-opening), it is reasonable that some training may be required. However, any changes to an employee’s role may need to be agreed with the employee (as it can designate a change to an employment contract), and an employee’s contract should be consulted and fully read to determine how changes can be made. More information can be found in our article here.

If an employer wants an employee to undertake training for a new or varied role, it would be advisable for the change in role to be agreed before or at minimum, at the same time as agreeing to the necessary training. This gives the best chance that the training is deemed as being directly relevant to an employee’s employment. Employer’s should certainly not ask employee’s to undertake training in speculation for a change of role, nor where that training will not relate to any varied or changed role the employee will be asked to undertake on their return.

Changes to employment contracts are complex, and legal advice should also be sought as required when making any amendments to an employee’s contract of employment.

Can an employee carry out other tasks during Furlough, such as trade union representation or director’s duties?

Version 8 of the CJRS guidance has confirmed that whilst on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers.  This concession could prove to be important in the weeks to come. 

Employers can also claim under the CJRS for office holders, such as Company Directors and Secretaries. These role holders are allowed to carry out their statutory duties whilst they are on Furlough, but no more than is necessary for this. For example, the filing of the Company’s accounts is a statutory duty which would be allowed, whilst contacting clients to discuss work to be undertaken for them, or informing clients of a company’s position during the lockdown period would not. There are more considerations for placing an office holder on Furlough Leave, and legal advice should be sought before doing so.

Conclusion

Employers may be keen to integrate their employees back into their workforce as the end of the Furlough Scheme, and the re-integration to work approaches. However, whether the employee is remaining on Furlough for the foreseeable future, or will soon transition, employers need to be careful on asking employees to undertake any task, whether that be big or small, directly related to their employment or not. Any such direction could risk an employee being deemed as not on Furlough Leave, and employers should if in doubt, have the employee conduct no work or task, remain away from the office, and seek legal advice as required.

As we transition into the next phase, employers will need to decide whether employees can bring more value to their business by returning to work, than the costs that can be saved by retaining them on Furlough Leave. Employers will need to consider other issues alongside those in this article in respect of the wider transition, some of which we address here.

As businesses go forward into the coming weeks, the Leathes Prior Employment Team are ready to provide advice, both in a legal and commercial context, to assist you in your decision making, using the perspective and experiences we obtain from working with a wide variety of employers and businesses not only in our employment work, but across our firm as a whole. Health and safety advice and risk management will be ever crucial.  If you have any questions on the content of this article, or require advice as your business begins to return to work in the coming weeks - please contact our Employment Team via email or call us on 01603 610911.