What to do if you employer REFUSES to furlough you
EMPLOYEES whose bosses haven't furloughed them when they believe they should be could take action including taking their company to an employment tribunal.
Under the government’s coronavirus jobs retention scheme employers can furlough staff who can’t work during lockdown but who they want to keep on the books for once the crisis is over.
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Employers can also furlough staff who are struggling to do their jobs while simultaneously looking after children who can't currently go to school.
The scheme applies to anyone on their company PAYE payroll on or before March 19, 2020, although crucially HMRC must have been notified of this on an RTI submission on or before this date.
But The Sun has heard from readers who've been told they can't be furloughed because they're an agency worker, or they work for a nursery, for example, while others have been placed on statutory sick pay instead of furlough.
Ultimately, it's your employer's decision to furlough you and the government can't force companies to do so or penalise them for not doing so.
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But if you want to be furloughed and your boss says no, that doesn't mean there isn't something more you can do about it.
Here's what you need to know.
1. Know your furlough facts and discuss them with your boss
The furlough scheme has been tweaked and added to ever since its launch last month, so it may simply be a case of your boss being uncertain of the rules.
You can check out our furlough Q&A for guidance, as well as read-up on the information on .
Agency workers, for example, can be furloughed - even if they work for an umbrella organisation, while nurseries can furlough staff proportionally based on the level of private funding they get.
And pregnant staff shouldn't be placed on statutory sick pay as they're instead entitled to paid leave if they're exposed to any risks at work.
Tom Neil, senior adviser at employment specialist Acas, said: “We would encourage employers to use the resources available to them such as the Gov.uk website and Acas.org.uk to learn more about the scheme and the benefits it can offer, and to use furlough to retain and support their staff wherever possible.”
2. Speak to your union
If your boss isn't helping and you're a member of a trade union, or there's a trade union representative at your company, speak to them and ask for their guidance.
You can find out if you can join a trade union by using the .
3. Consider taking a claim to an employment tribunal
Julian Cox, head of employment at law firm BLM's London office told us there are three potential grounds to go to an employment tribunal if your boss won't furlough you.
The first, he explains, is if employees doing similar jobs are furloughed but you're not.
Here, you could resign and claim for constructive dismissal on the grounds of a breach of trust and confidence - something Mr Cox says is written into all contracts.
Secondly, if you're made redundant rather than furloughed you might be able to argue it's an unfair dismissal on the grounds you could have been furloughed instead.
Slater and Gordon employment lawyer Danielle Parsons adds that if you have already been dismissed you could also appeal the decision and ask your former employer whether or not it will re-employ and furlough you instead.
In both scenarios you need to have been an employee for at least two years.
The third scenario, is if the decision not to furlough you is tainted by discrimination.
In this scenario, Mr Cox says your employer could face a claim under the Equality Act, and you have these rights from day one of your job.
In order to take your case to an employment tribunal, you first need to submit an online form via .
You have three months from the incident taking place to do so, and Acas then has four weeks to liaise with yourself and your employer to try to resolve the situation.
If you can't reach an agreement, the case can go to an .
Just bear in mind that because of the coronavirus outbreak your hearing may be postponed or it may take place by phone or video.
The service is free to use, although charity Citizens Advice warns there's a "small chance" of having to pay your employer's legal fees if you lose.
You'll also have to pay if you instruct a lawyer and don't qualify for legal aid.
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4. Keep notes of discussions with employers
In every scenario Ms Parsons advises keeping notes of any discussions with your employer.
She said: “You can do things like keep a work diary with a good note of all meetings and discussions where your employment is covered.
"Make a note of what is said and what you want to happen.”