COVID-19: Former employees, come back all is forgiven?

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The employer has discretion, but no obligation, to reinstate staff made redundant after 28 February.

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Some comments on social media suggest that employers have a moral duty at least to redeploy staff whose employment ended after 28 February 2020, for any reason, and put them on furlough leave.

The Coronavirus Job Retention Scheme guide updated as of 4 April makes it clear that the employer CAN re-employ an employee who was made redundant or stopped working after 28 February 2020.

This means that, for the purposes of eligibility for the furlough leave scheme, the employer has discretion, but no obligation, to reinstate staff made redundant after 28 February or staff ‘who stopped working for you’ after this date. The latter is not qualified and seemingly covers any reason for termination of employment, including resignation.

The HMRC initially provided a statement to to say that those employees who have resigned to start a new job after 28 February may return to the old employer and may then be put on furlough leave. The updated guide does contain this limitation and covers all employees ‘who stopped working’.

Does the employment law compel the employer to reinstate those ‘who stopped working’ after 28 February? In some cases, the employer will clearly have no obligation to consider re-employment. The employee may have resigned on own volition, whether to start a new job or for another reason. The employee may have been dismissed for reason of gross misconduct or poor performance.

The current prevailing legal opinion is that in some instances the employer will have at least an obligation to consider putting the employee on furlough leave as an alternative to dismissal, otherwise the dismissal may be deemed as unfair. Each case will be fact sensitive and the advice will depend on individual circumstances. For example, if the employee otherwise will qualify for furlough pay, was made redundant after 28 February and is appealing against dismissal, it may be advisable to reinstate the employee and put on furlough leave, in the meantime continuing with the redundancy consultation. The scheme guide explicitly envisages that employees still can be made redundant at the end of furlough leave.

If the employer decides to reinstate and put on furlough leave staff made redundant after 28 February, then all sums received by the employee in relation to the redundancy will have to be repaid to the employer.

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Kiril MoskovchukTrainee SolicitorRead More by this author

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