Following closure of primary and secondary schools on 5 January 2021, HMRC amended its guidance on which employees can be furloughed under the Coronavirus Job Retention Scheme (CJRS). An employer can now furlough an employee if they are unable to work, whether in the workplace or from home, because they are caring for children as a result of Covid-19 (Coronavirus). This includes where children are at home due to school or nursery closures.
How furloughing works
As before, furlough arrangements must be documented in writing. Employers can claim 80% of the employee's normal pay, capped at 80%, and will be responsible for paying employer National Insurance and pension contributions.
Employees who have not previously been furloughed are now able to be furloughed, provided that they were employed by 30 October 2020 and their employer has made a PAYE Real Time Information submission in respect of them.
Furlough can be full-time or part-time, and for any number of days. Employers have the flexibility to furlough employees on certain days or for certain hours of the week, allowing the employee to share childcare with a partner or member of their childcare bubble.
There is, however, no "right" for an employee to be furloughed, or obligation on the employer to furlough employees who are struggling with childcare.
Dealing with requests
Blanket refusal to consider requests to be furloughed may be indirectly discriminatory, as female employees who tend to provide the majority of childcare are likely disproportionately impacted. Employees may also consider that the refusal amounts to a breach of the implied term of trust and confidence in the employment relationship.
Employers should ensure decisions on when to refuse furlough requests, or who to furlough, are objective and consistent.
In addition to furlough, flexible working requests, the use of annual leave, unpaid emergency dependant's leave, and parental leave remain open to employees to balance childcare responsibilities with work.
Katie Davenport is an associate at Taylor Wessing LLP.
