During the latest lockdown, there has been increasing pressure on employers to furlough employees. I’ve been asked by several employers about how they should respond to requests from employees to be furloughed, particularly from parents with childcare responsibilities.

Government guidance is that employers can furlough employees whose health has been affected by coronavirus (COVID-19) or any other conditions, including if they are unable to work from home, or working reduced hours, because they:

• are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance; or
• have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household.

Whilst the guidance states that those categories of employees can be furloughed, the government has resisted calls that those employees must be furloughed. So whilst employees can ask to be furloughed, the decision whether to do so or not rests solely with the employer.

Considering requests to be furloughed

When considering whether or not to grant a request to be furloughed, a key question to ask yourself is whether or not operations have been negatively affected by COVID-19. Whilst many employers will be able to demonstrate that their operations have been affected by COVID-19 in some way, some have been able to maintain their workforce and have not needed to furlough their staff. If your operations have not been negatively affected and you furlough employees, there is a risk in doing so you may be deemed to be abusing the Coronavirus Job Retention Scheme (although, there is no need to show a ‘wider reduction in demand’ or to be ‘closed’ if the employee concerned is ‘clinically extremely vulnerable or at the highest risk of severe illness from coronavirus’).

Juggling working from home and childcare responsibilities is far from easy, and it’s likely to damage employee relations simply to dismiss furlough requests out of hand. If full furlough is not possible, it would be advisable to consider alternatives, such as part-time working via flexible furlough to work around childcare responsibilities.

As you’ll see from the above, there’s still a lot of uncertainty surrounding the rules that govern the Coronavirus Job Retention Scheme, and so, if you have any questions about how those rules apply to your particular business, our employment law specialists are here to help. You can get in touch by emailing online.enquiries@la-law.com or if your query is urgent, please call 01202 786135.