Should furlough pay be based on pre-maternity hours?

I return to work on Monday and through a flexible working request a while ago increased my days from three to four. Now work are furloughing me on my first day back on Monday, but instead of at four days they are reverting back to my old three-day work pattern so it will be 80% of three days not four. Can they do that?

Flexible Working

 

The level of pay you are entitled to receive whilst you are furloughed is determined by the terms of your contract of employment and any separate agreement you may have been asked to sign, specifying the terms on which you are furloughed. The amount your employer can claim from the Government will be subject to the rules and guidance concerning the Government’s job retention scheme.

The Government’s guidance is relatively clear in relation to your position. It states that for employees on fixed pay (ie a regular monthly salary), any claim that is made by your employer if you are furloughed upon return from maternity leave should be calculated against your normal salary.

In your case, your normal salary will either be the figure that is recorded in any written contract (as amended) that you have, or it is the figure that the business would normally pay you if you had not been furloughed and were returning to work as normal from maternity leave.

The outcome of your flexible working request is a permanent variation to your terms of employment. Therefore, if that agreement was made before your return from maternity leave, and before any decision was made to furlough you and your role, your contractual salary should be based on your increased working time of four days a week, and this is the figure that your employer should use to pay you and then to make any claim for reimbursement under the Government’s job retention scheme.

The key question is whether or not you and your employer had effectively varied your contract to include the increased working hours and pay, and also if this change has been reflected in any furlough agreement you entered into.

It is possible that your employer’s attempts to base a claim for your wages on your old working hours is a genuine mistake. This scheme is still very new, and the current guidance produced by the government to help people use it is already on the seventh version that we have seen.

I would suggest that you approach your employer again and produce a copy of the written confirmation of the outcome of your flexible working request. Point out to them that had you not been furloughed and were returning to work, your salary would reflect the fact that you are contractually required to work four days per week. Explain that you are currently unable to work those four days due to the pandemic, hence why you are furloughed, and so any claim for a grant on the Government’s scheme should be for the full salary you would receive if you were working (subject to the cap of either 80% of £2,500 per month).

Also, highlight that you have not agreed to vary your contractual working hours and salary back to three days per week, so as to avoid their trying to argue later that you had agreed to this variation. It is important to say that the obligation to pay you the correct salary is that of the employer, whatever they get back from the Government is between them and the Government. So if you have a contract saying you work four days a week then this is what they should be paying you on furlough, subject to the 80% and £2,500 cap.

If they fail to rectify this, or fail to engage at all, you should first try to raise a grievance with them. If this still does not resolve the situation you should contact ACAS under early conciliation to pursue a claim for unlawful deduction of wages to reclaim from your employer what you should have received.



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