A very different kind of furlough query/tribunal awards

[MMTTSB]

Hi,

Back story: I was furloughed in March 2020 (with my agreement) then subsequently resigned around 5 months later. I wasn't paid what I was owed and had to go through the tribunal process and won my case.

My former employer set their stall out at the end of the tribunal to establish financial hardship and indicated they wouldn't be able to pay, other than installments.

I challenged this as the company saved a lot of money last yr through staff leaving and not being replaced (more thank 100k for a business with 6 staff total) and the company has no overheads for premises etc so outgoings are minimal. On top of this they chose to furlough all their staff despite there being an upturn in the workload and no lack of money coming in, as all contracts are annual or multi year deals paid in advance.

In response to this, the employer admitted that they did not in fact enroll in the CJRS and therefor received no money from the government. This to me adds weight to the fact that they aren't short of money seeing as the government would have been paying the wages that they chose to pay themselves.

This is such a bizarre situation. I appear to have been furloughed under false pretense, only for the company to then fork out for wages when they didn't have to, meaning that I and my colleagues lost out financially when there was work there for us to do.

There doesn't appear to be a furlough fraud case to answer, as they never claimed the money in the first place, instead they used it in an effort to save 20% on their wage bill for 6 months plus.

Would there be any conceivable way of pursuing this to either claim recompense and/or have the company made accountable for their actions? If so, on what basis? I find the whole thing difficult to process in my head.

Finally, does anyone know if the company have to provide proof of financial hardship in order to pay the money they owe in installments?

Sorry for the ramble, it's been a long 7 months!

[ULA]

If you won an award then the Judgement will almost always specify the date that payment of the remedy must be made by, if so the employer will need to make sure this is complied with otherwise you can apply for enforcement. Did the judgement detail one single payment or instalment payments assuming the employer pleaded this case for the latter at the hearing.

What did you sign when you were put on furlough? Did you do any work whilst on furlough?

[jjiac]

i’m going through something similar, just replying so i get email notifications about replies

[MMTTSB]

Haven't yet received the written judgement, I know they have 21 days to pay.

The judge stated that it wasn't for him to decide on any of those aspects and it would be down to the employer to apply to pay in installments if claiming financial hardship.

I signed a letter composed by the employer which stated they were expecting a downturn in business and were therefore enrolling in the CJRS.

I signed to say I agreed to be placed on furlough as a variation to my existing employment contract with all other elements of this still in place.

If I didn't sign the agreement it stated the 'likely' outcome would be that I was laid off and receive only a statutory payment.

I was indirectly asked to work whilst furloughed but refused.

[ULA]

If your employer does not pay within the 21 days then you can complete a Penalty Enforcement Form, available from the Gov.UK website:
Employment Tribunal: Penalty Enforcement.

So in the agreement the employer stated they would be placing you on the CJRS scheme and that you agreed to the variation of your contract to being paid 80% of your salary. The issue is potentially, even though the company decided not to use the CJRS scheme to fund the 80% of your salary, you still agreed to be placed on furlough and be paid 80% of your salary, this is potentially regardless of whether or not the company made a claim.

The other issue is that since by my calculation you left in Aug/Sept time you would be out of time to make any form of claim to the employment tribunal as even if you did try for an unlawful deduction of wages the claim would have to be made 3 months less a day from when the deductions were made.

It's a really strange situation but I am not sure that there is much you can do via and employment tribunal but that is only my perspective. If I come up with any bright ideas I will post back on this thread.

[MMTTSB]

Appreciate the response thank you, that's all pretty much as I thought.

I'm really looking at this from the angle that the company are now claiming financial hardship and it would seem very strange for them to not claim CJRS if so.

Any ideas if an employer has to provide proof of financial hardship if they wish to pay the tribunal award in installments?

[ULA]

Sorry I have never dealt with an employer trying to argue paying a tribunal award by instalments not something I have heard happening before.