How to avoid the furlough discrimination trap

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The pandemic rolls on with the UK in various states of lockdown and tier restrictions. The pressure on businesses is also showing no sign of decreasing and with the government facing calls for the furlough scheme to be extended beyond March 2021, it looks like furlough is set to continue to be a hot topic into next year.

In this article we look at what is shaping up to be one of the most likely pandemic related claims and how to avoid it. Namely, furlough related discrimination.

What is it?

These types of claim are likely to focus on selection, namely, how employers have selected those they have placed on furlough and those who they have chosen not to place on furlough.

For a reminder on what constitutes discrimination, please see our previous articles:

Where furlough is concerned, employees tend to fall into one of two camps. Firstly, those who have been very resistant to be placed on furlough due to the financial impact but have agreed to it nonetheless because the alternative would have presented even more financial hardship. Secondly, there are those who have rather enjoyed the extra break and have been more than happy to be placed on furlough.

In either scenario, there is invariably going to be some disappointment amongst the workforce but where does disappointment cross the line into a claim?

Are employees entitled to be placed on furlough?

This is a key question and one we can answer very simply. There is no statutory right to be placed on furlough, it is not an entitlement nor is it something an employee can demand from their employer.

However, employees are legally protected from less favourable treatment at work, so unless the employer has furloughed everyone, there will have been some decision making along the lines. If those decisions have been made unfairly and placed certain types of employee at a detriment, there may be the potential for a claim.

The fairest method of selection most employers have been using is to use some sort of furlough rota system, that way everyone is treated the same.

Remember– you must have an employee’s written agreement to place them on furlough- otherwise you will face claims for the unlawful deduction of wages and breach of contract!

How can an employee bring a claim if they agreed to be furloughed?

This goes back to the implied term in any contract of employment, namely that of trust and confidence.

Employees have a right to expect that their employer will behave reasonably and in accordance with the law. As an employer you cannot ‘contract out’ of those obligations and just because an employee agrees to something, that doesn’t mean they waive their rights to legal challenges later down the line.

An employee will find out if they are the only one who has been furloughed or if they are the only one who hasn’t!

What about employees who have volunteered to be furloughed, can they claim?

A lot of employers have asked staff to volunteer to be furloughed. That is fine but it won’t automatically safeguard you from legal challenges.

For example, the staff will have volunteered in good faith and assumed that you have sought volunteers for furlough in good faith. If you haven’t and have in fact only approached your part-time staff, or staff from a certain age group or those about to go on maternity leave for example- this is discriminatory and even those who volunteered may raise a claim.

If you’re not asking everyone to volunteer, then you need to have a good reason.

If I agree to allow someone to be placed on furlough due to them having childcare problems or being at greater clinical risk from catching COVID-19, is this discriminatory to those workers who do not have children or who are not at risk?

Cases like this should be dealt with on a case by case basis. It is not clear how tribunals will see cases like this and of course we have no legal precedents to rely on either.

However, where discrimination is concerned, it tends to come down to whether someone (or a group) is being treated less favourably and suffering a detriment due to having a protected characteristic.

In this case, refusing to allow furlough in either of these situations would likely be riskier from a legal perspective. To turn down a request for furlough due to exceptional cases such as these, where it can be easily accommodated and the employee is eligible, is likely to cause a detriment because there is no entitlement to paid time off to care for dependents and statutory sick pay is likely to be considerably less than the amount the employee would receive if furloughed.

Also, your employee who doesn’t have children or isn’t as clinically at risk is not suffering a detriment by continuing to work, providing of course that if they have to present for work that the workplace is covid-secure.

The golden rule, as always, is to seek our advice.

Furlough selection do’s and don’ts:

  • Do use furlough fairly and consistently- if possible, use a rota system to ensure everyone is treated the same.
  • Do ensure you have written consent, even if you had agreement when furlough was first introduced, if you brought your staff back to work and have furloughed them again, new agreement should have been sought.
  • Don’t exclude those on furlough from company updates. Remember those on furlough can take part in training and if you are advertising for any new positions, don’t exclude them.
  • Don’t use furlough, or refuse to use furlough, as a punishment for unruly employees. Your disciplinary procedures should be used for that!
  • Don’t automatically refuse to furlough someone because they are asking to be considered. If they are asking for furlough – they may be asking for reasons linked to their health or parental responsibilities.
  • Don’t use furlough as a selection criterion for redundancy. You risk a claim for unfair dismissal.

See our previous articles on redundancy:

And finally… not hesitate to contact our experts. There is no such thing as a silly question, we are here to help you and will tailor our advice to meet the needs of your business.

Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.