Furlough Exploitation

[pseudonym22]

Hi - first time posting; I hope someone can help me! While it is tempting to indulge in something longer, my experience of forums tells me that simply relaying the facts will be the most effective way of doing things. I am seeking advice on a matter relating to unscrupulous exploitation of the furlough scheme by a previous employer of mine.

I was with my previous employer from 2018 until late last year.

I left to join another company.

From March 2020, right the way through until the scheme ended in September last year, I was placed on furlough by my employer.

For a significant portion of that period, I was only paid 80% of my wage.

For a portion of that period, they agreed to top up my wage with the few hundred pounds needed to get me up to my full salary.

I, and every other employee within the business, was made to work full-time while we were on furlough.

It was made clear to us, although not in writing, that we'd be fired if we didn't comply.

Half of the staff, including myself, were employed in a sales capacity and were actively generating revenue for the business while we were on furlough.

I have emails in which the CEO mentions the company's intention to continue furloughing us, only to reference the 'reduced commission' we'd be being paid in the next paragraph.

I also have a number of contracts for the work I secured the company during this time, some of which were publicly announced.

My question is this - do I have fair grounds to bring a case against the business for the money they didn't pay me, and the commission they effectively withheld by reducing the percentage paid to me?

I am performing well at my new employer, and am happy with them - I was content to let the matter lie, and hope that karma would catch up with my previous employer, but since I've left, they've behaved appallingly, and as such, I feel something needs to be done. I am, of course, aware that I could also report them to HMRC, but am conscious of the detrimental impact that might have on the careers of my previous colleagues, none of whom were willingly complicit in the furlough fraud. We were all working under duress.

[ULA]

Unfortunately there are many unscrupulous employers out there who claimed furlough whilst still requiring staff to work. It would be entirely up to you but HMRC do have a reporting line that you can contact to inform them of such behaviour by your ex-employer.

On what basis was your commission scheme set out? Was it contractual or subject to managment discretion?

[pseudonym22]

My commission was set out in my contract.

In a particularly unpleasant development, since my last post, my former employer has emailed my current employer in a bid to get me in trouble. They have no grounds for what they're saying and it is, quite simply, a petty, vindictive act; do I have any grounds for recourse here?

[ULA]

If your commission was set out in your contract and was not paid in accordanc with those contractual terms then you may have a case for unlawful deduction of wages.

Have you spoken to your current employer about the email? Do you know if they are concerned about it and whether it is in fact having a negative impact on their views about you as an employee and your ability to carry out the job they employed you to do.?

[pseudonym22]

That's interesting regarding the commission. Thank you. Surely I have a case for the reduction of wages I suffered as a result of being placed on furlough, too, then? Given that I was made to continue working full time.

In regards to your second point, yes, I have - but not at any length. Our legal team is reviewing the email at the moment. I don't believe they are overly concerned about it, given the fact that it's, frankly, a laughable attempt to cause me discomfort and make me look bad. That said, surely attempting to do that contravenes some sort of law? Because, no matter how much they may see it for what it is, as a new employee, I do not want to be seen as problematic, or a source of trouble.

More than anything, I am just shocked and disappointed by the petty, captious vindictiveness of it all - it's entirely needless. They're twice my age and seem to have resorted to petty point scoring, just because I left for another job. Funny how they don't see reducing my commission and making me work illegally as sufficient motivation to seek new employment!

[ULA]

The issues that have arisen around furlough have been pushing the impact on employment law legislation in ways that were not forseen when the goverment had to react in such a swift way to the devasting impact of Covid on the economy. I am sure it is not over either as we see employment tribunals over the next few years dealing with the issues that have arisen.

Potentially and I say that with a lot of disclaimers and I am only exercising my legal mind, as I have not seen anything in the Tribunals as yet, if you have been asked to work whilst being furloughed and you can prove that this was the case then there may be an argument that if you were only paid the 80% CJRS then the 20% (or less when your wages were "topped" up) you were not paid, given that you continued to work may be considered an unlawful deductions of wages. As I said not something I have heard of as yet being argued in an ET. If you were going to consider this at the very least I would suggest you speak to ACAS or an employment lawyer. I would also think that you would have to make a report to HMRC to conduct their own investigation which together with your proof of working whilst furloughed may help support this interpretation of unlawful deducution of wages.

Please be aware on the commission at least you have 3 months from the date you should have been paid the commission to start the Early Conciliation with ACAS and I would not advise leaving it to the last minute.

Is any of what has been send to your new employer anything that could be considered discriminatory or give them grounds to terminate your employment?