Your legal rights when returning to work during COVID-19

The Coronavirus Job Retention Scheme has been a lifeline for many businesses and employees in recent months, but with the scheme set to close on 31 October 2020, questions are being raised about the recent changes, what they mean for businesses and how they can affect an employee’s legal rights.  

Here’s all you need to know about returning to work and planning for the future. 

What changes have been made to the furlough scheme?

JULY: Since July, employers have been able to bring back furloughed staff, whether that be on a part-time or full-time basis. The state continued to pay 80% of salaries, with employers not required to pay anything. 

AUGUST: In August, employers were asked to start paying ER NICs (employer National Insurance contributions) and pension contributions for the hours the employee is on furlough, with the Government still paying 80% of wages. 

SEPTEMBER: September will see the Government’s contributions drop to 70% up to a cap of £2,187.50 for the hours the employee is on furlough. Employees will continue to pay ER NICs and pension contributions, as well as topping up the employee’s washes to ensure they receive 80% of their wages to a cap of £2,500. 

OCTOBER: As the closing date approaches in October, the Government’s contributions will drop again, paying 60% of employee wages up to a cap of £1,875. Employers will continue to pay ER NICs and pension contributions, as well as topping up wages to ensure they’re meeting the 80% mark. 

What do the updates mean for my future employment? 

While the employer contributions will not directly affect the employee in terms of wages and day-to-day requirements, there could be serious consequences for the business itself. 

With many organisations struggling to pick up trade throughout the pandemic, the huge disruption to business poses a risk of redundancy. The nature of the virus means that employers must consider adapting as the Coronavirus Job Retention Scheme comes to a close. 

The rules surrounding redundancy have not been changed, however, while the furlough scheme is in place (until 31 October 2020), there are some things to keep in mind including: 

 • Unfair dismissal

 • Logistical issues surrounding remote consultations 

 • Full pay is expected for an employee’s notice period, even if they have only been receiving the 80% of furlough pay 

 • Redundancy pay should be based on full salary, not furlough pay 

 • Any outstanding annual leave should be paid at the full rate of pay 

What is unfair dismissal and how can I make a claim?

If you believe you have been unfairly dismissed after two years of service, you may be eligible to make a claim. Your redundancy is legitimate if it meets one of the following criteria:

 • Your workplace closes

 • Your workplace decided it needs fewer staff members

 • Your workplace goes through a restructure and your post is no longer required

Your employment tribunal will also investigate whether your employer:

 • Tried to find any other suitable work for you

 • Offered you other work and you were informed about the job

 • Allowed you to apply for or take another job

The redundancy procedure is considered fair if your employer:

 • Provided you adequate warning of what is happening

 • Discussed with you why you are being selected for redundancy

 • Considered alternative employment for you, if it is available

How to make an unfair redundancy claim

Once you have decided to make a claim, there is a restricted time limit on going to an employment tribunal. In order to make a claim, you have 6 months less 1 day to initiate the claim in the employment tribunal.

In order to issue an employment tribunal claim, you must first obtain an Early Conciliation Certificate from ACAS. You should contact an employment law solicitor as soon as possible and they can assist with the early conciliation process. Your solicitor will help you build a strong case with your evidence, as it is the employee’s obligation to prove the redundancy was unfair.

What next?

If your case advances to an employment tribunal, there are no fees in the UK, and our team of solicitors can help you calculate how much compensation you may be entitled to if found unfairly made redundant.

During this time, extra tribunal staff are available to help conduct cases remotely, with hearings potentially taking place over the phone or online. Call our Employment Law team at 0191 500 6050 or fill out our contact form to discuss your options or begin your claim.

If you’re entitled to redundancy pay, it will be calculated using the amount you earned before you were furloughed. You can check how much redundancy pay you can get.

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