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The Coronavirus Job Retention Scheme (CJRS) was originally extended until 31 March 2021. However, the Chancellor announced that this would again be extended to 30 April 2021.

Employers can claim 80% of an employee’s usual salary for hours not worked, under the extended CJRS. This is the case even if they have not claimed under the scheme in the past, with no cap on the number of employees an employer can claim for.

It feels as though there have been endless issues arising from furlough since its inception in March 2020; the current issue being whether or not employees affected by the closure of schools are able to insist on being put on furlough. In a letter to the Chancellor of the Exchequer last week, Shadow Chancellor Anneliese Dodds warned that parents, particularly mothers, were at risk of losing their jobs as a result of the school closures.

Current Guidance

The current guidance states that, “the scheme is designed to help employers whose operations have been severely affected by coronavirus to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises that different businesses will face different impacts from coronavirus.” This affords employers with more discretion to claim under this extended scheme.

The guidance is clear that an employer can furlough an employee if they are unable to work due to caring responsibilities that have arisen as a result of COVID-19 (for example, the closure of schools). This includes being flexi-furloughed. The problem however appears to be that they are not obliged to, with there being no right to be furloughed.  

How can this affect employees with Children?

The Government have today announced that schools will not open until at least 8 March 2021. School closures affect families in different ways depending upon the age of their children, whether they are at junior or high school, whether they are a single parent family and whether there are key worker parents in the household. We envisage certain circumstances where an employee will have a genuine argument whereby an employer will need to consider their request. An example being, if an employee is a single parent with children at home who can carry out their role from home but is unable to do so because of the childcare obligations they face as a result of school closures.

However, we do not believe that all cases requesting furlough for childcare reasons would be reasonable. For example, if the employee has children who are year 10 or 11 in high school and do not require supervision, or, if there are two parents, where at least one is able to work from home, we do not believe employers would be obliged to grant the request in these circumstances.

Some employees may therefore cite childcare within their request to be furloughed, however, as above, their circumstances may not meet the threshold for the employer to believe there is a genuine requirement for it.

This request will entirely depend on each employee’s individual circumstances; employers should be mindful of this and should consider each case in turn.

Considerations for Employers

Employers should act carefully when faced with a request from an employee to be furloughed. For example, a single parent who is at home with young children of primary school age would be unable to carry out their role from home and as such may be faced with having to exercise their right to take unpaid emergency leave to care for dependents. In that situation, an employer’s unreasonable refusal to grant the parent’s request for furlough leave could give grounds for a constructive dismissal claim.

To avoid such a scenario, employers must consider requests very carefully, taking each individual employee’s circumstances into account. Where there is a legitimate business need to have an employee attend work, it is hard to see any justified criticism for an employer refusing a request to be furloughed. Where however there isn’t a pressing need, or it is possible to make alternative arrangements to accommodate the request, employers should think carefully before rejecting it given the consequences for the employee, especially those from single parent households or where young children are involved.

Further, it is not within the scope of this article, however, is important for employers to consider the possibility of an employee sharing with them that they are currently dealing mental health issues. It may be considered a reasonable adjustment to furlough the employee if they request it; especially if they are struggling with work and home life balance.  

There is an implied term in all contracts of employment that employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence or trust between employer and employee. There is a clear risk to an employer that they could be found to have breached that implied term (and therefore committed a repudiatory breach of contract giving rise to a constructive dismissal) where they don’t give careful and proper consideration to a request to be furloughed.

Russell Brown

Author Russell Brown

Russell is a Partner and Head of Glaisyers' Employment Team.

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