We bring the latest updates to the furlough scheme and more


Latest furlough scheme changes 

There are three main amendments to the scheme and although not huge changes in and of themselves they are an interesting harbinger of what's to come after July when the scheme will undergo structural changes to prepare for the end of furlough in October.

Extension of the scheme
  • The scheme in its current form will continue until July after which, for 3 more months, employers will be able to bring employees back to work part time whilst still supporting them through the furlough scheme. 
  • During this extended period from August to October, "employers will be asked to pay a percentage towards the salaries of their furloughed staff". 
  • Interestingly the staff will continue to receive up to 80% of their salaries with a cap of £2,500 but "the employer payments will substitute the contribution the government is currently making". 
  • It seems that the last element will incentivise employers to go one of two ways without much in-between: either i) provide as much work as possible to those who were previously furloughed; or ii) actively plan for redundancies. Detailed plan is expected "by the end of May". 
Volunteering for furloughed employees 
  • Whilst the previous guidance simply stated that employees can "take part in volunteer work or training" the amended guidance states that furloughed employees can take part in training or "volunteer for another employer or organisation".
  • This might be widen the scope of what amounts to "volunteering" in the furlough context.  
Creation of a new guide called "Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme" which replaces the section called "Employees that you can claim for" in previous versions of the guidance 

BEIS guidance on holiday rights during the pandemic 

Government's non-binding guidance states: 

  • Furloughed workers accrue holiday rights like any other workers without breaking furlough period but employers must pay normal pay during holiday therefore need to top up pay 
  • Employers may require employees to take holiday during furlough but with the following qualification: 
    • "should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday" 
  • Practical effects of the Working Time (Coronavirus) Amendment Regulations 2020 (SI 2020/365) which permit the carry-over of any untaken leave due to Covid-19
    • For furloughed workers, carry-over would be rarely justified if they were able to take holiday during the furlough period (although it might be justified if the employer could not afford to top up their pay)  

ICO guidance for employers on workplace testing 

Lawful basis for testing employees 
  • Legitimate interests are likely to be the most relevant lawful grounds for processing. 
  • For special category personal data (sensitive personal data), the relevant condition will be the employment condition in Article 9(2)(b) of GDPR along with the condition in Sch.1, para 1 of DPA 2018 for employer health and safety obligations. 
Demonstrating compliance and accountability 
  • Employers must keep records to demonstrate compliance and employers undertaking testing and processing of health information will need to conduct a data protection impact assessment (DPIA) 
Data sharing and retention  
  • Employers can keep specific health data about employees provided this is actually necessary and relevant for their stated purpose. Data protection should not be seen as a barrier to sharing data with authorities for public health purposes or the police where necessary and proportionate but when sharing with other staff employers should avoid naming individuals if possible and not provide more information than is necessary. 
Temperature checks or thermal camera testing 
  • There must be transparency and any monitoring must be proportionate and necessary. 
  • It's important to consider whether there are other less intrusive means that could be used.

Key contact

Sungjin Park

Sungjin Park

Knowledge Lawyer, Employment
London

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