Results from a British Chamber of Commerce survey at the end of April revealed that more than 70% of private firms in the UK have furloughed staff. That percentage is now likely to be higher due to the Coronavirus Job Retention Scheme (CJRS) being extended until the end of June and with the lockdown restrictions in Scotland remaining in place for the next three weeks, the length of time staff are on furlough leave is only going to increase. It is never been more important for employers to communicate with furloughed staff, but how do they do that without risking their claims under the CJRS?
A quick reminder: what is the CJRS?
The aim of the CJRS is to protect jobs by allowing employers to furlough employees with the UK Government paying cash grants of 80% of their wages up to a maximum of £2,500. To be eligible to make a claim under the CJRS, an employer, amongst other things, must have instructed that employee to stop all work in relation to their employment either for, or on behalf of, the organisation (or any “linked or associated organisation”) and “this includes providing services or generating revenue”.
A furloughed employee can undertake training or volunteer work, provided that in doing so they do not provide services to, or generate revenue for, or on behalf of, the employer and training activities are “directly relevant” to the employee’s employment.
Why should employers keep in touch with furloughed staff?
All of that said, employers still owe a duty of care to its furloughed staff and that is met, in part, by ensuring they remain engaged to the extent that when normal work resumes, they will be able to ‘pick up where they left off’ as part of the team and not left feeling marginalised. Unhelpfully, there is no provision for the equivalent of ‘keeping-in-touch days’ during maternity leave for furloughed staff.
Do’s and Don’ts
The following list of do’s and don’ts are intended to give employers some guidance as to how to keep in touch and engage with furloughed staff without jeopardising any claim under the CJRS.
- DO keep in touch with all furloughed staff. DON’T miss anyone out. An employer doesn’t want to protect its claims under the CJRS only to find it then has to deal with a grievance because someone was excluded (yes, that’s right. Your furloughed staff are talking to each other and they know who has been contacted and who hasn’t).
- DO make time for both 1:1s and team or department catch ups. DON’T stop furlough staff from getting in touch with each other out with these times.
- DO keep in regular touch but DON’T go over the top. Weekly contact is more than enough. There’s not that much happening in any workplace (if anything at all in some cases) that an employer needs to be in touch on a daily basis.
- DO agree with furloughed staff how to get in touch and DON’T switch between different methods of contact if at all possible. DON’T use furlough staff work email address and DO consider deactivating these if they haven’t already. If a preferred method of contact was been indicated by each staff member before then went on furlough leave try DO try and respect that method of communication if at all possible. If a different method is necessary for any reason, make sure and let them know in advance (i.e. a one-off video conferencing call rather than email) but DON’T chop and change unnecessarily; it can become confusing when trying to remember what app or device you need to have to hand and fired up at any particular time.
- DO agree with furloughed staff when contact will be made if at all possible. If a weekly catch up has been agreed then try and stick to the same day and time. We all like routine. DON’T surprise anyone with a 9 am zoom call. They may be home schooling children or may just be out of the shower. They may be harassed /embarrassed/stumped for something to say and you might regret what you see.
- DO organise social events. Friday night drinks with the team is a good thing to do. Try not to talk about work but DON’T be worried if there is some work chat. It’s natural that work will come up, for example, they may be curious to know how a piece of work they were involved in is progressing or there might be general chat about what is keeping the team busy prompting a suggestion about work improvements or a source of business. Casual, brief chat of this nature is fine but DON’T let it stray into asking how furloughed staff would handle do something or, worse, do a quick piece of work at home.
- DO allow furloughed workers to offer a view or opinion if work chat comes up but DON’T go seeking their views, hinting or suggesting they do ‘a quick little something’ or actively taking steps to bring in work.
- DO allow furloughed workers to keep tweeting what it is they’re up to during lockdown and retweeting/commenting on their non-furloughed staff tweets but DON’T ask them to do it. The same applies to all other forms of social media. Provided all views are their own, they are choosing (without being asked) to retain an interest in what it is their colleagues are doing and they’re not expressing industry or sector views or writing blogs or articles (especially any on-line activity they would ordinarily do as part of their role), it is difficult to see how this can be deemed to be business development or marketing.
- DO keep furloughed staff updated on any charitable efforts but DON’T ask them to get involved even if this is a charity that they were involved in before they were on furlough leave, it falls out with what would have been their working hours or doesn’t require them to use the same skills they use at work. Voluntary work including charity work is allowed during furlough leave but the risk is this may be deemed as marketing and indirectly “generating revenue” for the business.
- DO tell furloughed team members about potential training but DON’T do so without first being sure that it is “directly relevant” to their role. This is unlikely to include training that they can then share with others in the business for their or the business’ benefit.
This is not an exhaustive list so, if in doubt, take advice before doing anything. This is important because HMRC reserves the right to retrospectively audit claims and it’s likely to include checking that employees did not continue to work – whether or not they or their employer realised that’s what they were doing at the time.
Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
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