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Things To Consider if an Employee Requests to be Furloughed Because of the Impact of School Closures

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 under the extended CJRS even if they have not claimed under the scheme in the past with no cap on the number of employees that 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.

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). The problem however appears to be that they are not obliged to, with there being no right to be furloughed.  

The issue affects 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.

Employers need to act carefully when faced with a request from an employee to be furloughed. Where for example a single parent finds them self in a position where they can’t carry out their role from home, but have young children of junior school age at home to care for due to school closures; leaving them in a position where they are unable to work and faced with having to exercise their right to take unpaid emergency leave to care for dependents may give grounds for a constructive dismissal complaint.

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.

It is clearly established that there is implied in a contract of employment a term 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 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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