Real Employment Law Advice

What do you need to know about working whilst on furlough?

As I am sure you are aware the Job Retention Scheme was extended to the end of April 2021. The governments guidance sets out clearly that an employee is unable to work for their employer whilst furloughed. This aspect of the scheme is very straightforward, however, what happens if an employee has two jobs or their employer asks them to undertake training.

Well, the government has also confirmed that the following activities can be undertaken by an employee, whilst they are furloughed:

  • Training;
  • Volunteer work; and
  • Work for another employer (if your contract allows)

However, whilst the information and guidance is extremely useful, it does not cover all scenarios, as such, this article summarises the activities an employee can do whilst they are furloughed.

More than one employer

If you have more than one employer, you can be furloughed or flexibly furloughed from one employer and continue to work for the other.

However, you must ensure that the two employers are not linked or associated, as this would mean you are still providing services and making money for the employer, who has placed you on furlough.

Volunteer work

The guidance sets out that an employee on furlough can undertake volunteer work, however, you cannot volunteer for your employer, as it could be argued you are working.

If you work for a charity you need to be particularly careful, as you cannot be furloughed and volunteer for the same charity.

This means you must ensure the volunteer work is in no way linked to your employer.

Training

As discussed above, an employee can undertake training whilst on furlough, however, the training should not be used by an employer for the purpose of generating revenue or providing service. Again, this would be deemed as working.

Trade Union Representatives

If an employee, who is furloughed, is a union or non-union representative, they can undertake activities for the purpose of individual or collective representatives of employees and workers.

Assistance at Court or Tribunal Proceedings

What happens if your employer asks you to attend court proceedings and act as a witness, whilst on furlough? The guidance around this is a little unclear. A court has held (in respect of a Personal Injury claim) that requesting your employees’ attendance at court, is not a breach of the scheme rules. However, this decision is not binding on HMRC, who may take a different approach.

It is possible that a different approach may be taken (by Courts and HMRC), if an employer was compelling an employee to attend a hearing, for example based on a contractual term.

If this arises in your business or organisation, I advise you seek specific legal advice or a direct answer from HMRC on this point.

Working for another Employer

If your current employer has placed you on furlough, you may be able to undertake other employment. However, you must check your employment contract, as it is sometimes the case that you would be prevented from working elsewhere by a term of your contract. If this is the case, you should discuss matters with your employer, as without their express permission you would be in breach of contract.

If your employer enables you to work elsewhere, you must ensure that the employers are not linked in any way. Further, you must be able to return to work for the employer who placed you on furlough, if they decide you are required to return to work.

If you have any questions around furlough, please do not hesitate to contact us on 01983 897003.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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