Ask the Experts

If employees refuse to be placed on furlough can we make them redundant?

Yes, if employees fail to agree to be furloughed, then employers have the option to dismiss by reason of redundancy, provided that the redundancy definitions are met, and a formal process is adhered to. It is important to emphasise the fact that employers should not select employees just because they are unwilling to go onto furlough leave – and that the process for redundancy must follow all the usual employment laws.

The majority of employees realise that furlough is a means to avoiding redundancies, therefore they are likely to agree. The government guidance states that employees are required to give written consent to furlough arrangements, ceasing work or the terms of any part-time working arrangements in place. Employees should also consent to the pay reduction although existing lay off provisions in some contracts may provide partial consent.

Some employers may feel that the predicted long-term effect on their company leads to inevitable closure or rationalisation. Due to this, It may be useful for employers to select employees to furlough using a process similar to redundancy selection. This would consist of using objective criteria, such as a scoring system that looks at skills, productivity, previous appraisals and so on.

Can employees that were made redundant in Autumn 2020 be placed on the extended furlough scheme instead?

Yes, employees  who were made redundant in the weeks that led up to the announcement furlough scheme was being extended can be re-employed and furloughed, as long as they were on the payroll on 23rd September 2020 and have since been made redundant or ceased working for the employer. The employees who were on fixed-term contracts that have expired since 23rd September are eligible to be re-hired and then furloughed. It is not a requirement for employers to rehire and furlough their employees, but they have the option to and if requested by the employee, it needs to be considered.

Employers may decide against re-hiring and furloughing due to a variety of reasons, such as the National Insurance Contributions cost, pension contributions, and the expense of accrued holiday. Also, the employer may be in a process of restructuring and the employees that were made redundant many not be needed post-furlough and the redundancy process would need to be repeated. If the redundancy process was ongoing or subject to an appeal, then employees may also be able to challenge the fairness of selection for redundancy, if furlough was not considered as an alternative.