Furlough - Trade Union demands. Question!
Discussion
Would be grateful for a bit help if any out there know their way around this...
I had a project running pre Covid on which a team of 10 people were working on a flexible, fixed term contract of 45 days. The client originally said they would suspend the project but then, as we were 70% complete, decided to terminate although it 'may' start up again later in the year - most likely as a new project.
Details on furloughing at the time were not as complete as they were to become but looking at the options available at the time, we (as in me and the team) determined that it would make sense to simply end their contracts. Most of them were young and still living at home and the days left on their contracts varied from 5 to 26 max which would only be the period that any furlough would apply. By terminating their contracts they would be free to seek alternative work elsewhere or get benefits that would likely be more generous than furlough. Plus I read furlough as a means to retain staff so they can come back to work but as there would be no work to come back to, the option didn't apply. Contracts were terminated according the normal terms. All staff were consulted and gave verbal agreement on the process.
Yesterday I received an email from a Trade Union representing one of the team stating that they should have been furloughed and that I have potentially "breached the implied term of trust and confidence" and that I have acted in a "capricious and arbitrary way". They have highlighted that the furlough scheme has been extended to October and demanded that they be furloughed or they will consider legal action.
So, a couple things I need to know or have confirmed:
1. As this person is no longer an employee, the only way I can furlough him is to employ him but that would negate the ability to furlough him. Correct?
2. Even if I could do this, the maximum amount of time I could furlough him for is the days left on his contract. But because we do not guarantee a minimum number of days and because the project on which he was working no longer exists, I would have to provide false information to furlough him. Correct
I set the company up in January so could do without this headache right now. If I've done wrong, then I'll take the heat but I'm struggling to see where I have.
Any pointers would be gratefully received,
I had a project running pre Covid on which a team of 10 people were working on a flexible, fixed term contract of 45 days. The client originally said they would suspend the project but then, as we were 70% complete, decided to terminate although it 'may' start up again later in the year - most likely as a new project.
Details on furloughing at the time were not as complete as they were to become but looking at the options available at the time, we (as in me and the team) determined that it would make sense to simply end their contracts. Most of them were young and still living at home and the days left on their contracts varied from 5 to 26 max which would only be the period that any furlough would apply. By terminating their contracts they would be free to seek alternative work elsewhere or get benefits that would likely be more generous than furlough. Plus I read furlough as a means to retain staff so they can come back to work but as there would be no work to come back to, the option didn't apply. Contracts were terminated according the normal terms. All staff were consulted and gave verbal agreement on the process.
Yesterday I received an email from a Trade Union representing one of the team stating that they should have been furloughed and that I have potentially "breached the implied term of trust and confidence" and that I have acted in a "capricious and arbitrary way". They have highlighted that the furlough scheme has been extended to October and demanded that they be furloughed or they will consider legal action.
So, a couple things I need to know or have confirmed:
1. As this person is no longer an employee, the only way I can furlough him is to employ him but that would negate the ability to furlough him. Correct?
2. Even if I could do this, the maximum amount of time I could furlough him for is the days left on his contract. But because we do not guarantee a minimum number of days and because the project on which he was working no longer exists, I would have to provide false information to furlough him. Correct
I set the company up in January so could do without this headache right now. If I've done wrong, then I'll take the heat but I'm struggling to see where I have.
Any pointers would be gratefully received,
I would suggest the Arkell vs Pressdram response in jest, but am sure you’ll get more appropriate advice from others. https://lettersofnote.com/2013/08/07/arkell-v-pres...
There is no right to furlough, and only the employer can initiate it. The employee has no leverage other then they must also agree to being furloughed.
You could of, in theory, furloughed the employees that had more than 3 x weeks employment left at the time. However I also remember that information was very sketchy at the beginning, and you would not be able to furlough now the work for them has finished.
You need to write back carefully, as I’m sure they will dissect every paragraph, but as far as I’m aware they don’t have any rights and are trying it on.
Good luck
You could of, in theory, furloughed the employees that had more than 3 x weeks employment left at the time. However I also remember that information was very sketchy at the beginning, and you would not be able to furlough now the work for them has finished.
You need to write back carefully, as I’m sure they will dissect every paragraph, but as far as I’m aware they don’t have any rights and are trying it on.
Good luck
Before you received this "email" from the union had the ex-employee contacted you saying that a union was "representing" them ?
Can't see how furlough has anything to do with this - and anything you do would be lying. Given the periods involved surely they can just be dismissed without any reason as long as you meet whatever notice period ?
Can't see how furlough has anything to do with this - and anything you do would be lying. Given the periods involved surely they can just be dismissed without any reason as long as you meet whatever notice period ?
Thanks chaps. Very helpful. I'm satisfied we've done everything correctly so inclined to use this approach :-)
lastofthev8s said:
I would suggest the Arkell vs Pressdram response in jest, but am sure you’ll get more appropriate advice from others. https://lettersofnote.com/2013/08/07/arkell-v-pres...
An update if you're interested.
Despite the abrasive and threatening nature of the initial approach, I responded factually explaining that the person is no longer employed by me and that I have no obligation to furlough them and that the project they were employed to work on has stopped and according to their contract of employment, that stops too.
They have responded saying that despite all this, I must re-employ them and furlough them.
Astonishingly, I can do this (if I wished to) - re-employ someone for the sole purpose of furloughing them even knowing there will be no job for them at the end of it.
Now, whilst I can see a bit of logic in this (some were laid off early because the rules were not fully established at that time), the company still has to pay NI contributions, payroll costs and hold proper insurances. I set my company up in January, began trading in February and so do not qualify for any government support other than perhaps a loan which I don't need or want.
So, I would effectively become an agency for the government in dispensing of government benefits for which i am expected to pay for the pleasure of.
Don't think so!
I'm still under no legal obligation to furlough and have no intention of doing so. They have threatened legal action on the grounds of breaching Implied Terms of Trust but some research suggests this near impossible to prove in a court of law in the context of this situation.
There's an irony here too. The person concerned was a cracking worker. Nice, efficient and all that. We often re-employ people we've employed previously on similar projects to new ones when they arise. Knowing this person's propensity to run to a union and that union's approach, I wouldn't touch them with a bargepole in the future. So in attempting protecting the rights of a worker, the union has in fact damaged their future prospects a little bit.
Despite the abrasive and threatening nature of the initial approach, I responded factually explaining that the person is no longer employed by me and that I have no obligation to furlough them and that the project they were employed to work on has stopped and according to their contract of employment, that stops too.
They have responded saying that despite all this, I must re-employ them and furlough them.
Astonishingly, I can do this (if I wished to) - re-employ someone for the sole purpose of furloughing them even knowing there will be no job for them at the end of it.
Now, whilst I can see a bit of logic in this (some were laid off early because the rules were not fully established at that time), the company still has to pay NI contributions, payroll costs and hold proper insurances. I set my company up in January, began trading in February and so do not qualify for any government support other than perhaps a loan which I don't need or want.
So, I would effectively become an agency for the government in dispensing of government benefits for which i am expected to pay for the pleasure of.
Don't think so!
I'm still under no legal obligation to furlough and have no intention of doing so. They have threatened legal action on the grounds of breaching Implied Terms of Trust but some research suggests this near impossible to prove in a court of law in the context of this situation.
There's an irony here too. The person concerned was a cracking worker. Nice, efficient and all that. We often re-employ people we've employed previously on similar projects to new ones when they arise. Knowing this person's propensity to run to a union and that union's approach, I wouldn't touch them with a bargepole in the future. So in attempting protecting the rights of a worker, the union has in fact damaged their future prospects a little bit.
Simpo Two said:
'ill rage'?
I read it that the person has shown himself to be not quite the pleasant character he appeared to be previously. Nothing to do with a union, just an attitude.
Yep. I’m not anti-union at all. I read it that the person has shown himself to be not quite the pleasant character he appeared to be previously. Nothing to do with a union, just an attitude.
As a small business I have to minimise the risk of needing to spend time on superfluous issues like this. So knowing there is someone prone to resorting to a union rather than call and discuss with me (at least in the first instance), it is in my interest to avoid that situation arising in the future.
robdcfc said:
You say 5-26 days left on their contracts?
Short term fixed length contract or self employed and working for you for a fixed term?
Short term fixed length PAYE contract but with no guaranteed minimum work. Contracts are pegged to the projects someone is employed to work on so if the project finishes early, so do they.Short term fixed length contract or self employed and working for you for a fixed term?
Seen a lot of people moaning that they recently left or were let go and are fuming that their Ex employers won’t re-employ and furlough them.
I blame Martin Lewis as he was strongly implying that they should, morally have to , and it was the states way of getting financial aid out.
But there’s still considerable cost and implications taking them back or keeping them .
Holiday pay is an example as they are still building it up , NI etc , and you have to sack them again at some point , and they could kick off the second time just to be awkward
I blame Martin Lewis as he was strongly implying that they should, morally have to , and it was the states way of getting financial aid out.
But there’s still considerable cost and implications taking them back or keeping them .
Holiday pay is an example as they are still building it up , NI etc , and you have to sack them again at some point , and they could kick off the second time just to be awkward
matjk said:
I blame Martin Lewis as he was strongly implying that they should, morally have to , and it was the states way of getting financial aid out.
But there’s still considerable cost and implications taking them back or keeping them .
Holiday pay is an example as they are still building it up , NI etc
This is the point. I don't mind becoming a benefits distribution agency but don't think I should have to carry any costs for that particularly as I have no need for the people regardless of Covid.But there’s still considerable cost and implications taking them back or keeping them .
Holiday pay is an example as they are still building it up , NI etc
StevieBee said:
This is the point. I don't mind becoming a benefits distribution agency but don't think I should have to carry any costs for that particularly as I have no need for the people regardless of Covid.
I’m not running a furlough scheme so don’t know this: doesn’t the Govt also pay the NI?skwdenyer said:
StevieBee said:
This is the point. I don't mind becoming a benefits distribution agency but don't think I should have to carry any costs for that particularly as I have no need for the people regardless of Covid.
I’m not running a furlough scheme so don’t know this: doesn’t the Govt also pay the NI?StevieBee said:
.
There's an irony here too. The person concerned was a cracking worker. Nice, efficient and all that. We often re-employ people we've employed previously on similar projects to new ones when they arise. Knowing this person's propensity to run to a union and that union's approach, I wouldn't touch them with a bargepole in the future. So in attempting protecting the rights of a worker, the union has in fact damaged their future prospects a little bit.
Yep we don't live in the times of sending kids down the coal mine. I get this person may be desperate to get some income but long term i would be the same as you especially with a small just started business. I have seen in big companies how people act and vowed I would never hire anyone for my own business. Staff are an asset and a liability at the same time.There's an irony here too. The person concerned was a cracking worker. Nice, efficient and all that. We often re-employ people we've employed previously on similar projects to new ones when they arise. Knowing this person's propensity to run to a union and that union's approach, I wouldn't touch them with a bargepole in the future. So in attempting protecting the rights of a worker, the union has in fact damaged their future prospects a little bit.
I think you’re right in that you don’t have to do anything other than comply with the employees contract of employment and employment law, if you’ve done everything required in them your fine.
That said I do know of a lot of companies who had a lot of fixed term employees who did the same as you, after having terminated their contracts did take them back on, furlough them, will be extending their contracts whilst the furlough scheme continues as they believe that the employees they had won’t be able to go on to other contracts at the moment due to CV19, they may wish to reemploy them at some point in the future and it costs them nothing.
That said I do know of a lot of companies who had a lot of fixed term employees who did the same as you, after having terminated their contracts did take them back on, furlough them, will be extending their contracts whilst the furlough scheme continues as they believe that the employees they had won’t be able to go on to other contracts at the moment due to CV19, they may wish to reemploy them at some point in the future and it costs them nothing.
Gassing Station | Business | Top of Page | What's New | My Stuff