Furlough worker requested to work (or unlawful reduction of pay?)

[octagon]

Hi all,

I am stuck in tricky situation and need some guidance from this community to help me reflect and navigate.

I recently joined an SME.

A few days before my probation ended, I was informed (verbally) by my line manager that I was being made a furlough worker.
My line manager asked me to "support" the company through this period of difficulty (which in essence, meant that I was being asked to work as per my normal contract).

I felt I had to agree to these terms for a number of reasons which I'm highlighting below.
1. Family commitments
2. With only a few days remaining in my probation, I felt there were no other options
3. My line manager is very aggressive, zero ethics and values and purposefully intimidating. I felt I could never win that battle.
4. I was informed everyone in the company would have the same status.


I have never received an official letter that I have become a furlough worker.

Shortly after this incident, the company director made an announcement that the company would pay back the difference everyone experienced in the following months.
Not sure I understand how this would be possible given we were furloughed.

Since then, I have resigned as I felt my line manager damaged and destroyed our relationship of mutual trust and confidence.

My angle, right now, is that given the company has not sent me an official letter, and I've been working as per my contractual obligations, this is an unlawful reduction of pay.
My desirable outcome is to get paid the difference especially given the director has made this announcement.

I am 99% confident the company does not intend to pay me as they've been ignoring my letters asking them to confirm the pay.

I need some help from you to understand which directions this could take and how I should navigate.

Thank You

[ULA]

Sorry but they is some confusion about your post that i need to clarify:

1. When you were put on furlough leave you did not receive any change to your contractual terms to confirm that you were on furlough leave and therefore only getting 80% of your salary?
2. You did not do any work for the company whilst you were furloughed?
3. Was the company director's announcement intended to say that the company would make up the extra 20% so that this combined with the 80% furlough would give a 100% of salary?
4. What pay have you received?
5. When were you put on furlough leave and where you on this when you resigned?

[octagon]

Sorry but they is some confusion about your post that i need to clarify:

1. When you were put on furlough leave you did not receive any change to your contractual terms to confirm that you were on furlough leave and therefore only getting 80% of your salary?
2. You did not do any work for the company whilst you were furloughed?
3. Was the company director's announcement intended to say that the company would make up the extra 20% so that this combined with the 80% furlough would give a 100% of salary?
4. What pay have you received?
5. When were you put on furlough leave and where you on this when you resigned?

Hi, thanks for your time.

1. I have never received any communication confirming these changes (that I am on furlough leave or that I'll be getting reduced pay). Only what was verbally announced to me over the phone
2. It was (and still is) BAU for me. I work full hours as this is what was requested of me by my line manager.
3. Good question. This was not clarified. The 80% has a cup of £2,500 as far as I know. I earn more and as such, the money that comes in my bank account is in practice less than 50% of what I earned before I was made furlough.
4. Please see above.
5. I *was told* I was put on furlough a couple of days before my probation ended. I've been working in this state for the last 4 months. I was still on furlough when I resigned.

Hope this clarifies.

Once again, many thanks

[ULA]

The one major issue with all of this is that up until 1 July you could not be on furlough and work for the company at the same time. Since the 1 July this changed and a company could have someone working flexible furlough i.e. working for the company for part of the week on normal wages and then the rest of the week on furlough on the 80% scheme.

From what you have said it would appear they have flouted the rules of the scheme by working for them full time - I presume this was remotely form home?

Potentially you may have a claim for unlawful deduction of wages. This could very well be based on the argument that under the terms of the furlough scheme you were not in fact furloughed and since you worked your full contractual hours then you are entitled to 100% pay.

Are you still on your notice period?

[octagon]

The one major issue with all of this is that up until 1 July you could not be on furlough and work for the company at the same time. Since the 1 July this changed and a company could have someone working flexible furlough i.e. working for the company for part of the week on normal wages and then the rest of the week on furlough on the 80% scheme.

From what you have said it would appear they have flouted the rules of the scheme by working for them full time - I presume this was remotely form home?

This is correct. I worked full time remotely from home (like everyone in the company).

Potentially you may have a claim for unlawful deduction of wages. This could very well be based on the argument that under the terms of the furlough scheme you were not in fact furloughed and since you worked your full contractual hours then you are entitled to 100% pay.

Are you still on your notice period?

I am still on my notice period.

How should I pursue this avenue? Can you please advise?
Also, what are the risks with this direction and is there any alternative direction I could be considering?

Many thanks in advance

[ULA]

How many times have you written to the company to get clarification on the money you believe you are owed and how long is left on your notice?

I presume from what you have said in your post that your salary would ordinarily have been above the cap of £2,500?

Have other members of staff been put on furlough and if so have they been asked to work?

If your company does not pay the money that you feel you are due then you do have the right to make a claim in the first place via ACAS and Early Conciliation to an employment tribunal. The basis of that claim could potentially be for unlawful deductions of wages on the grounds that although furloughed you felt obligated and where required to continue working your normal contractual hours and are therefore due your full salary. At the stage of early conciliation the process is that ACAS will act as an intermediary to try and get a settlement between you and the company. Below is a link to information on this service:

https://www.acas.org.uk/early-concil...iliation-works

Do you have evidence of the requirement to work as that would be very useful to support your claim.

Just in regard to the furlough scheme payments that were made to you I presume the company has in fact been claiming the 80% of salary via the government's CJRS (Coronavirus Job Retention Scheme)?

[octagon]

How many times have you written to the company to get clarification on the money you believe you are owed and how long is left on your notice?

I presume from what you have said in your post that your salary would ordinarily have been above the cap of £2,500?

Have other members of staff been put on furlough and if so have they been asked to work?

I sent them three reminders in writing and still waiting.
You are correct in regards with my salary.
As far as I am aware, almost the entire company has been put on furlough and asked to work.

Do you have evidence of the requirement to work as that would be very useful to support your claim.

I have no evidence that I was required to work because it was all "informal" i.e. over a call.
I do however have evidence that I worked (emails, meetings, messages, projects etc.) plus, I have evidence that what goes in my account does not match what is written in the contract. Are you saying this may not be sufficient?

Just in regard to the furlough scheme payments that were made to you I presume the company has in fact been claiming the 80% of salary via the government's CJRS (Coronavirus Job Retention Scheme)?

I wouldn't know. I have zero trust in them and as far as I'm concerned they may as well claim I am furlough whilst I'm not.
I called HMRC to ask them to investigate whether I am furlough and they said they couldn't do that and asked me to report them anonymously.
I don't know how this will impact my desirable outcome (which is to get the money) so I have not reported them. At least yet.

Hope this makes sense and once again, I wanted to thank you for your time as I'm struggling to find the right advice elsewhere

[ULA]

Thank you for the information.

You have at least shown that you have tired to engage with your employer to get clarification on what payments you will be getting.

Can I suggest that you take screenshots on your phone of the evidence you have been working albeit ensure there is no confidential company/client etc information visible and certainly do not email anything to a personal email account.

I am obviously not sure of the wording of the written correspondence you have sent but can I suggest that you send something along the following lines of:

Dear xxx

Further to my three previous emails/letters of (insert the date of each) it is disappointing not to have had a response. As you are aware my notice will be finishing on xxxx and prior to this I would like to have confirmation that all outstanding monies due will be paid.

I was informed on xxx that I would be placed on furlough, however I was never formally advised of this, nor was I asked to sign a variation to my contract to accept a salary change to 80% capped at £2,500. However, given the situation and to support the company as requested by my line manager in the call, I accepted the situation. On xxxx the company director made an announcement that the company would pay back the difference in salary that everyone experienced in the following months. I have throughout furlough continued to work my contractual hours even on the reduced salary which is less than 50% of my pre furlough salary.

I therefore require your assurance that my final salary as announced by the company director, will include the difference between my capped furlough salary and my contractual remuneration from the start of being put on furlough to my last working day paid in full. (If you have accrued but untaken holiday then at this point add - In addition I have xx days accrued but untaken holiday which should also be paid at my full salary level.

In the event that the sums as detailed are not paid in my final salary i will consider this an unlawful deduction of wages and will pursue a claim at the Employment Tribunal, however I hope that this course of action will not be necessary.

Given the situation i would appreciate that your respond to me as soon as possible.

Please feel free to change to suit your personal style.

If your employer has furloughed staff, claimed money from the government und the CJRS but you have still been working full time this is fraud against HMRC. It is your decision entirely whether, once you have left their employment, you report them anonymously.

[octagon]

Thank you for the information.

You have at least shown that you have tired to engage with your employer to get clarification on what payments you will be getting.

Can I suggest...

Many thanks for your response.

I have not sent the letter yet because in the meantime, my line manager scheduled a call with me to provide clarifications. Once again, verbally only.

According to my manager, the company has an ambition to pay back people who are leaving or have left the company when the company hits specific financial targets.

Based on our conversation so far and your suggestion above, I presume the letter would still apply if adapted accordingly to include latest information?


Kind regards

[ULA]

I think that yes, with some adaption, you should still sent this letter since you need to get things in writing to confirm the situation in regard to getting your full pay back.

[octagon]

...In the event that the sums as detailed are not paid in my final salary i will consider this an unlawful deduction of wages and will pursue a claim at the Employment Tribunal, however I hope that this course of action will not be necessary.

Hi again,

I wanted to ask you the following question.

What is the difference between "Employment Tribunal" and just going to a lawyer?
What process would a lawyer do by pursuing a claim which is different to employment tribunal?

Many thanks

[pt2537]

Hi again,

I wanted to ask you the following question.

What is the difference between "Employment Tribunal" and just going to a lawyer?
What process would a lawyer do by pursuing a claim which is different to employment tribunal?

Many thanks

The ET is the forum where the dispute is resolved, the lawyer is a user of the forum, so you could use a lawyer to take your case to a tribunal or you could di it yourself.

[octagon]

Hello again,

I wanted to update the forum with my latest info in case other people are in my place.
Also to get your thoughts and advice on how to proceed.

Here is a summary of where I am today:

- I sent the letter I was advised above.
- The company responded that whilst I was indeed a furlough worker, they soon realised I could not be furlough *and* work at the same time so they soon removed me from the furlough scheme and as such, I was not furlough whilst working for them with reduced pay. According to them, I accepted to work with reduced pay.
- I responded back that I accepted to work on reduced pay on the premise that a) I was a furlough worker and b) I was compensated in full at a later stage (which is what they told me on the phone). As such, if I were a furlough worker and then removed from the scheme whilst continuing to work full time for them, I was led to believe I was furlough and as such, I could not have provided an informed consent.
- I then started ACAS early conciliation
- The company responded to ACAS through their lawyer. The word 'furlough' has now been completely removed from their narrative. This time, they're arguing I accepted to work with reduced pay as the company faced financial difficulties. They believe they owe no money to me but as a gesture of goodwill they are offering to pay when and if they hit specific financial goals.
- I have now asked ACAS to terminate the case and proceed with ET.

As discussed, I have evidence to provide that
- I worked full time
- I was paid less than what was contractually agreed
- I was told I was compensated in full
- Correspondence with a colleague who admits I was furlough

Unless the company fabricates stuff, they have no evidence to show they *personally* informed me in written that I was furlough or that I would be receiving less than what was contractually agreed.

Any thoughts would be highly appreciated.