What should you do if your employer asks you to work during furlough?

Crossland Employment Solicitors’ Beverley Sunderland advises what employees should do if their employer illegally asks them to work during the hours they are furloughed.

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Crossland Employment Solicitors’ recent survey of 2,000 furloughed employees across different employers, small and large, revealed that 34% of furloughed employees had been asked by their employer to carry out work while furloughed.

If you find yourself in this position as an employee then your employer is going completely against the current rules of the coronavirus job retention scheme (‘CJRS’). The CJRS bans an employee from carrying out any work for their employer or anyone connected to their employer, other than training.

The rules change on 1 July so that all employers can now bring previously furloughed workers back on a part-time basis, pay them for the hours they work and claim a grant for the hours that they don’t. However, this is just as open to abuse as the ‘full furlough’ scheme because what is to stop employers saying the employee has only worked one day when they have worked four?

Your options

There are options for employees. You can either complain to your employer first to inform them that it is against the rules, which is best done in writing for evidence and to involve HR. There is an anonymous HMRC hotline to be used to report employers who are abusing the system and it claims to have had over 3,000 calls/emails to date. Based on our survey, that is likely to be the tip of the iceberg.

However, few employees tend to want to go down either of these routes, whistleblowing on their employer for fear of loss of their job, especially during the current economic climate.

But employees who go along with this fraud on the system are complicit and technically speaking, a fraud on the Treasury can carry a life sentence. Realistically however, HMRC is drawing up plans to impose penalties on employers who are cheating the system. This is likely to be repaying the amount of grant and a fine. They are going to give employers 30 days to voluntarily repay the furlough grant before starting their investigations.

If an employee is being told ‘work or face redundancy’ it is a difficult choice. However, some evidence that they have protested is helpful, such as an email to their employer saying how uncomfortable they were about it, but they were threatened with redundancy.

There will be two types of employer cheating the CJRS – those who have seen their business all but dry up and have just about managed to keep going but only by claiming the grant and asking employees to work. And those who have just seen this as a way of increasing profits. Either way, the CJRS rules are there to try to protect future employment, and abuse of the system will only have a financial impact on the entire economy, which will likely result in increased redundancies anyway.

*Beverley Sunderland is Managing Director of Crossland Employment Solicitors.

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