#AskTheCIPD – questions and answers from our Twitter Q&As on Furlough

To help our members and followers navigate these uncertain times we have been running a series of Twitter Q&As, with the help of both internal and external experts in the respective fields. Two of our Q&As have discussed furlough (due to popular demand), so we thought it might be helpful to bring all of the questions and answers into one place.

Bear in mind that the guidelines surrounding furlough from the government are constantly changing, so whilst this advice was correct at the time it was given, we would advise double checking with the official government guidelines before you follow any of this advice.

Do holidays accrue for both salaried and flexible employees whilst on furlough? Do we need people to accept this condition in writing?
Yes, but you can agree to reduce accrual to statutory holiday. Lewis Silkin Employment @EmploymentLS

Can employees take annual leave whilst furloughed?
We believe so, HMRC recently tweeted this was possible (subject to employee receiving full pay) – yet to be confirmed in guidance. Andrew Willis @HRinform

Someone has resigned and now wishes to withdraw that. Apparently, they have been advised they should do so and receive furlough payment?
We would be cautious about agreeing to withdraw notice. Whilst you appear not to need to show redundancy this could be seen by HMRC as an abuse and employer would be taking cost risk. Lewis Silkin Employment @EmploymentLS

Re-employing someone who resigned, to enable them to get Furloughed. What gap is needed for no continuity? 
There must normally be gap of complete week ending on a Saturday – subject to exceptions and no guidance on application to re‐furloughing. Andrew Willis @HRinform

How would you deal with an employee who requests to made redundant instead of being put on furlough?
Furlough can only be done by agreement. If the employee refuses furlough, you need to make them redundant or continue in employment on full pay. Remember, the law defines redundancy as covering both temporary and permanent loss of work or business. Lewis Silkin Employment @EmploymentLS

If staff don't agree to going on furlough, do we need to start consultation with them to make their role redundant?
Yes. It would be collective consultation if 20 or more redundancies are possible and individual consultation in any event, particularly if have unfair dismissal rights. Lewis Silkin Employment @EmploymentLS

How do we select or deselect people for #Furlough if you need to reduce a small amount of the workforce who all do the same job?
In selecting, you need to ensure you do not discriminate so transparency, consistency and objectivity are recommended but no need to follow redundancy consultation process. Lewis Silkin Employment @EmploymentLS

Can shielding employees now be furloughed even if there is work available?
Yes, the updated guidance clarifies that you can furlough shielders where there is work available on site. If they are not sick and can WFH then you can't furlough. Tom Blake @TheHRGuy_

If a salaried employee does regular, voluntary overtime. What would the 80% be calculated on?
You would include regular overtime and use the variable pay calculation. Particularly if this overtime is used in holiday pay calculations. Tom Blake @TheHRGuy_

Do I include or exclude commission in reference salary?
Include if it is compulsory commission or the employee is on OTE. Exclude if it is discretionary commission e.g. tips. Tom Blake @TheHRGuy_

Someone a zero-hour agreement and has been on payroll for 12 months hasn’t performed any assignments for the company since July 2019. They may have (not confirmed) had an assignment start in April 2020 for the Easter Break. Would you furlough?
It is the employer's decision to furlough where there is not work available due to covid-19. If you do furlough you would use the variable pay calculation. Tom Blake @TheHRGuy_

How many times can we claim the furlough grant?
You will make one claim per pay period. Monthly payroll would be one claim per month and one claim per week for weekly pay. Tom Blake @TheHRGuy_

My company cannot afford to pay people before we get the grant, what can we do?
You can apply for the grant 14 days before payroll runs. Or investigate the business interruption loans. Tom Blake @TheHRGuy_

Do I have to collectively consult if placing 20 or more people on furlough?
It’s wise to complete HR1 and collectively consult if the alternative (if people won’t furlough) is likely to be redundancy. Risky to rely on special circumstances defence. Seek advice and at least consult to the extent reasonably practicable in circumstances. Andrew Willis @HRinform

What happens if we TUPE staff in after 28 February 2020? Can they be furloughed?
Updated Guidance – if transfer after 28 Feb (now 19 March) and TUPE applies transferee can furlough and claim for transferring employees. Andrew Willis @HRinform

Do we have to agree to KIT days during an employee’s maternity leave when everyone else in their team is on furlough?
KIT days are always down to agreement – if there is no work to do then it follows a KIT day could not be agreed. Andrew Willis @HRinform

What happens to employees who are furloughed but normally have deductions from their salary for payments such as court judgements and child maintenance?
There is no explicit guidance on this point, however the expectation would be that usual deductions continue. Andrew Willis @HRinform

For more guidance on furlough we have pulled together a list of FAQs, you can find them here.

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