The guidance states that if an employee is unable to work (including from home), or can only work reduced hours due to coronavirus (COVID-19) increasing their caring responsibilities, their employer can utilise the CJRS as a means of supporting them. Their employer can either place them on full time furlough, or furlough them for hours that they are unable to work.
The Government has provided clear examples of caring responsibilities. These include caring for:
It is important to note that charity employers will still have to meet the general eligibility criteria in order to utilise the CJRS for their employees with caring responsibilities.
As a reminder, the CJRS is available to non-public sector employers who cannot maintain their workforce because their operations have been affected by coronavirus. The guidance does not explicitly state how operations must have been affected or whether there must be a financial impact which leaves matters open to interpretation. Arguably if a number of employees cannot work their contracted hours due to unexpected caring responsibilities that arise directly from the pandemic, school closures being the most obvious example, this is likely to impact an employer's ability to maintain their workforce at the required level to deliver services or meet other operational requirements. This coupled with other factors such as staff absences due to periods of self-isolation or coronavirus-related sickness, could leave the workforce significantly stretched, particularly if the demand for work has not diminished.
In addition to the above, the guidance states that employees are only eligible for furlough if they were on the payroll on 11:59pm on 30 October 2020. This means that charities must have made a Real Time Information (RTI) submission to HMRC for that employee between 20 March 2020 and 30 October 2020 if they intend to furlough them now.
It should be remembered that there is no right to be furloughed. It is at the discretion of the employer whether to offer furlough or to grant a request from an employee. If an offer is made, the employer must ensure that the terms of furlough are agreed with the employee and recorded in writing, particularly where the employee's pay will be reduced.
There has been a lot of media coverage in relation to female employees with care responsibilities being disproportionately disadvantaged because their requests for furlough have been declined by their employers. If a charity is unable to agree a caring-related request for furlough, it is sensible to discuss its rationale with the employee first and to explore whether there is an alternative solution that will help to balance their caring responsibilities before making a final decision.
If full furlough might have a detrimental effect on the charity's ability to provide a viable service or place unreasonable demands of other colleagues, a compromise might be achieved that could see the employee working reduced hours, an alternative work pattern or amended duties to perform key functions for the charity whilst being placed on furlough part-time, to help meet caring responsibilities at other times during the day.
If an employee asserts that they cannot perform their role due to caring responsibilities, it could be considered unreasonable to refuse a furlough request if the option is available to the charity and it could be accommodated. Unreasonably refusing caring-related furlough could amount to a breach of trust and confidence.
It could also potentially amount to indirect sex discrimination if refusing requests has a disproportionate impact on female staff and is not a proportionate means of achieving a legitimate aims. This could result in a grievance and, if not resolved, it is possible that the employee may resign, assert that they have been constructively dismissed and pursue a claim.
Therefore, it is prudent for charities to give thorough consideration to each caring-related furlough request that is received and where possible to agree a furlough arrangement that finds an appropriate balance between caring and work commitments. If demand for staff is low due to the impact of coronavirus, a full-furlough arrangement may suit both the individual and the charity, whereas in other circumstances a mix of furlough and flexible working could provide a suitable solution. It is always sensible to build into any agreement the opportunity to review the arrangements periodically to assess if they are still meeting the needs of parties.
If you have any concerns in relation to how your charity should respond to a request for furlough from an employee with caring responsibilities, we would be happy to explore the options with you and to assist you with your response to the request.
There are now much tighter time limits in place for submitting claims under the CJRS. Charities should be mindful that claims need to be made by the 14th of each month for the previous month, subject to that date falling on a weekend, in which case the relevant date would be the next working day.