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Job Retention Scheme — latest on furloughing staff

The government continues to feed us information on its Job Retention Scheme in the style of an old fashioned TV serial as opposed to a modern day box set.

The scheme remains invaluable, but it’s far from ideal to get details in instalments.

We could wait in case all is revealed in the next episode; however, given the need to make urgent business decisions that is luxury few can afford.

Also, a bit like Twin Peaks, the next episode may still not answer all the questions.

To illustrate, on Saturday 4 April we got the third instalment of the government guidance following the scheme being introduced on 20 March 2020. On the following Monday, we had details focussing on apprentices (somewhat of a specialist spin off from the main series).

We saw the latest update, released just ahead of the Easter weekend, on the evening of Thursday 9 April.

The guidance is getting longer and more complicated. It also on occasion moves away from previous releases. The latter is an important reminder we are dealing with, and putting our faith in, government announcements and governments can change their minds.

However it remains essential reading for anyone who is involved in furloughing staff.


I will not repeat my previous summaries of the scheme (please see our coronavirus hub for earlier updates). Instead I will highlight a few important developments. These are —

  • If we agree to furlough staff for business reasons the fact they are off sick or become ill does not prevent us from doing so. So you can be ill and on furlough at the same time
  • Although you cannot receive a furlough payment and statutory sick pay at the same time, it appears you can choose to the former
  • If staff have TUPE transferred to your business after 28 February 2020 they can be furloughed provided their continuity of employment commenced before this date
  • Benefits in kind are not covered the scheme. In my view any contractual entitlement to receive these continues in the absence of agreement to the contrary
  • Salary sacrifice contains something of a trap as furlough payments are based on the employee’s salary after the salary sacrifice is applied. As result the rules on switching out of salary sacrifice schemes are relaxed

Notice any omission?

Despite this being one to the most frequently asked questions, the guidance does not clarify whether employees can be furloughed and on annual leave at the same time.

The failure to do is as surprising as it is disappointing; however, maybe the government wants to keep a major plot development back for the next episode?

Stay tuned.

Kirk Tudhope

Kirk is accredited by the Law Society of Scotland as a specialist in employment law and heads our employment law team. He has over 25 years experience of representing employers at Employment Tribunals including defending unfair dismissal and unlawful discrimination claims. Kirk also provides clients with detailed advice on the many challenges that arise in the modern workplace including reorganisations, redundancy, dismissals, equal opportunities, drafting contracts and absences.

Posted, 13 April 2020 by Kirk Tudhope
Categories: Coronavirus | Coronavirus and employment law | Employment | Insights