COVID-19: Furloughed Employees to Receive Full Notice and Redundancy Pay

Morgan Lewis
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Morgan Lewis

The Department for Business, Energy & Industrial Strategy published a statement on 30 July announcing that furloughed employees will receive statutory redundancy pay based on their normal wages, rather than a reduced furlough rate. This measure was introduced as part of the government’s general efforts to protect people’s incomes through the Coronavirus Job Retention Scheme and prepare for the impending rise in redundancies as the scheme winds to a close. The new rules were introduced by The Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 (SI 2020/814) (the Regulations), which came into force on 31 July 2020. This LawFlash considers what this welcome clarification will mean for employers who are considering making furloughed employees redundant.

LATEST UPDATES

  • As of 1 August 2020, employers using the Coronavirus Job Retention Scheme are now required to contribute national insurance and pension contributions with respect to furloughed employees. This is the first time that employers will be required to make any form of financial contribution as part of the scheme.
  • Statutory entitlements for furloughed employees, including redundancy pay, are to be calculated with reference to a furloughed employee’s full pay. The new law ensures that those furloughed under the Coronavirus Job Retention Scheme are not short-changed if they are made redundant alongside their non-furloughed counterparts.
  • This announcement follows the introduction of the Job Retention Bonus, which encourages firms to retain furloughed employees by awarding a one-off payment of £1,000 for every furloughed employee who remains employed through to the end of January 2021.

This LawFlash supplements our detailed prior analysis that sets out the key considerations for UK employers as the furlough scheme draws to a close.

NEW LEGISLATION

Employees with more than two years’ continuous service who are made redundant are usually entitled to a statutory redundancy payment, based on their length of service, age, and pay, up to a statutory maximum. However, the government has noted that a minority of businesses have taken advantage of the furlough scheme in order to pay reduced redundancy rates based on reduced furlough wages.

In a continued attempt to support workers during the pandemic, businesses will now have to pay employees their full redundancy entitlements under the new legislation that came into force on 31 July. This means that furloughed employees who are made redundant will now receive statutory redundancy pay based on their normal wages, even if they were receiving 80% of their wages since March.

The Regulations will continue to apply until the relevant statutory entitlements are no longer affected by an employee being or having been furloughed. Employers who effected redundancies and made payments before 31 July will not be retrospectively covered by the Regulations but may inadvertently face scrutiny by employees in the coming weeks if they used reduced rates to calculate these entitlements.

CALCULATING STATUTORY REDUNDANCY PAYMENTS

The amount of statutory redundancy pay depends on an employee’s average weekly pay, length of continuous service and age. An employee’s average weekly pay is usually worked out by calculating the average pay received over the 12 weeks immediately before they receive notification of their dismissal by way of redundancy. Workers with normal working hours (and whose pay does not vary with the amount of work done) are typically entitled to rely on their basic salary for the purposes of the redundancy calculation.

The Regulations prescribe that the calculation of a week’s pay in relation to furloughed employees is to be calculated with reference to an employee’s full pay. Employees on fluctuating hours are typically entitled to a payment based on the average of their last 12 weeks’ pay, which is likely to be at the reduced 80% figure if they were furloughed. The new law provides necessary clarity for such employees who may have been negatively impacted due to the nature of their working pattern.

The new law applies to basic statutory redundancy pay entitlements where the calculation falls on or before 31 October 2020; any additional or enhanced redundancy pay stipulated in individual employment contracts will continue to apply in accordance with ordinary employment laws.

OTHER EMPLOYMENT RIGHTS

The new legislation also requires employers to calculate other statutory payments with reference to a furloughed employee's normal pay, thereby amending the definition of “weekly pay” to a furloughed employee’s normal pay. These include:

  • Redundancy pay (including by reason of being laid off or kept on short-time).
  • Notice pay, which could be as much as 12 weeks’ notice depending on the employee’s length of service. Employees that are serving their notice period while on furlough leave will need to have their salary topped up to 100% pay.
  • Compensation for unfair dismissal.
  • Pay for failure by the employer to provide a written statement giving particulars of reasons for dismissal.
  • Compensation due to the employer’s failure to comply with an order for reinstatement or reengagement.
  • Remuneration for a period of absence to look for employment or arrange training as a result of a notice of dismissal.

These measures will ensure that furloughed employees retain their pre-furlough rights and are not prejudiced for having taken advantage of the government scheme.

CONSIDERATIONS FOR EMPLOYERS

The furlough scheme is scheduled to end on 31 October 2020. While some employers may delay planned redundancies in order to benefit from the Job Retention Bonus, it is likely that severely affected businesses will proceed with making redundancies in the near future, if they haven’t done so already. The National Institute of Economic and Social Research think tank recently estimated that unemployment could rise to 10% of the British workforce by the end of 2020.

Unlike the statutory schemes designed to assist employers during the pandemic, the cost of redundancy payments is a protection for employees, the cost of which must be borne solely by employers. The present climate and impending rise in unemployment means that for some, every penny counts. The difference between a full and reduced redundancy payment could go a long way to assist those struggling financially.

It is widely recognised that a large number of businesses have been impacted by the pandemic and will have no option but to reduce their workforce. While redundancies may be unavoidable, they must be fair and reasonable in the circumstances. The new laws might simply affirm what some employers are already doing, but will go a long way to prevent those taking advantage of the scheme to effect cost savings. Notably, basic awards for unfair dismissal cases must be calculated on full pay, which should also serve to deter employers from dismissing under illegal grounds.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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