Your rights when furlough ends

Furlough is ending soon, and you might be worried about what happens next.

With the ending of the UK government furlough scheme (officially, the ’Coronavirus Job Retention Scheme’) on 30 September 2021, employers have to decide if they will take back their furloughed workers, or make them redundant, leaving many of us feeling anxious about the future. 

In this article, we’ll explain your rights if you’re going back to work after furlough. 

We’ll also look at what you can do if you’re now being made redundant, or were made redundant during the furlough period. We’ll look at two recent Employment Tribunal decisions around this.

Fair treatment during furlough: a checklist

As the furlough scheme ends, we want to make sure you have been treated fairly during furlough. Here are a few things to consider.

  • Carrying over holiday: in 2020, the government introduced a law allowing employees to carry over up to 4 weeks paid holiday into their next 2 leave years, where it was not “reasonably practicable” for them to take it due to Coronavirus. Make sure you’re allowed to carry over any unused leave. 
  • Length of service: your period of employment is not interrupted by furlough. For example, some rights only apply if you’ve been employed for 2 years. If you got to 2 years of service while on furlough, you have the benefit of those rights.
  • Annual leave: your leave entitlement continues to build up while you’re on furlough.   
  • Pressure to work during furlough: your employer should not have asked you to work during any period you were furloughed. You are allowed to carry out training whilst on furlough, but nothing else.  
  • Holiday pay: you should have received your normal full pay for any annual leave taken during furlough.
  • Benefits other than pay: you might well be entitled to your normal benefits (such as bonus schemes and car allowances) during furlough.

My employer is taking me back after furlough

If you’ve been on furlough, you should have a furlough agreement. Your employer is obliged to keep this document for 5 years. If your employer is asking you to come back to work, they should give you notice, in writing, that your furlough is ending. The notice period will probably be in the agreement - there is no legal minimum, but you should be given as much notice as possible. 

What are my contractual rights?

You have the right to return to the same job you had before furlough. In these challenging times, your employer may be keen to make changes to your contract of employment. However, if your employer wants to change any term of your contract, they should follow the usual processes.

Making changes to your contract - ACAS guidance

Your employer is not allowed to reduce your hours or your pay unless:

  • your contract of employment allows them to  
  • you have agreed to the change, or
  • a trade union has agreed to the change. 

Unfortunately can sometimes get around the difficulties in changing employment contracts by firing and re-hiring employees - but you might have a valid claim against them if they do. 

Changes to your employment contract - When changes are not agreed - ACAS guidance 

It’s a good idea to review your employment contract before returning to work and check if it allows for changes to pay, hours and/or location. 

What about emotional support?

It may be a relief to return to work, but you might also be feeling anxious, particularly if you’ve been furloughed for a long time. You may have questions like:

  • Has the working environment changed? 
  • Are safety measures in place to protect me against Covid-19?
  • What have I missed? 
  • Will I be paid if I have to isolate? 

Your employer should be considerate towards you and encourage you to raise your concerns about returning to work. Specifically, your employer should take time to consider how you could be offered:

  • flexible working arrangements
  • reasonable adjustments to the working environment and/or practices
  • health and safety adjustments in the workplace
  • wellbeing support, including mental health
  • time to adjust to returning to work
  • training / refresher courses.

If you're worried about working during the pandemic, ACAS has prepared a series of advice notes covering isolation and sick pay, hybrid working, getting the vaccine for work, Long Covid, and more. 

Access ACAS guidance on working during the pandemic

I’ve been made redundant during or after furlough 

Being on furlough doesn’t protect you from being made redundant. However, it doesn’t change your rights during redundancy, either. The same protections apply.

  • Your selection for redundancy must be fair.
  • The redundancy must be genuine - meaning there is a real business reason to make you redundant.
  • Your selection must not be a result of discrimination - see some examples of discrimination in the workplace.
  • your employer should follow a fair process. 

You may also be entitled to payment for: 

  • your notice period 
  • unused annual leave
  • the redundancy itself.

If you are made redundant during or after the furlough period, your employer must use your full normal pay, not your reduced furlough pay, when calculating your payments.

You might be able to make a claim for unfair dismissal if you think you shouldn’t have been made redundant, or if there were problems in the way the redundancy was carried out.

Understand your rights during redundancy - ACAS guidance

I’ve been made redundant because my employer is insolvent

Sadly, the pandemic has had a bad impact on many businesses. There will probably be more people being made redundant because their employer has become insolvent. If you were on furlough and then made redundant because your employer is now insolvent, you might be eligible to apply for payments from the Insolvency Service.

Access the Insolvency Service - gov.uk

Tribunal cases: Should I have been furloughed instead of losing my job?

If you’ve recently been made redundant, you might be wondering why your employer didn’t furlough you instead.    

We’ll look at a couple of cases brought to the Employment Tribunal for unfair dismissal during the furlough period - one where the employer should have considered furlough and one where the redundancy was justified. 

Example: An employer who should have considered furlough

In June 2021, an Employment Tribunal considered an unfair dismissal claim by a live-in care worker. She asked to be furloughed after the elderly person she cared for moved into a home. Her request was refused. 

Two months later, she was made redundant because live-in care work had reduced significantly due to the Covid-19 pandemic. 

The judge agreed that the employer had no work for her at the time of her dismissal. However, her employer had no way of knowing if that was going to change. The employer didn’t consider whether she should be furloughed for a while to see if any other work became available. 

The judge said that “a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy.” 

This failure to give consideration to the possibility of furlough made the dismissal unfair, and the worker won her case.

Read the full details of the care worker’s unfair dismissal case - Gov.uk

Example: An employer who justified redundancy instead of furlough

In April 2020, a flight instructor employed at a private airfield agreed to be placed on furlough. 3 weeks later, his employer started redundancy proceedings. He asked to remain on furlough, but his employer refused, saying that they wanted to use the furlough scheme to fund his notice period. 

He brought an unfair dismissal claim in March 2021, but the Tribunal disagreed that he ought to have been left on furlough. 

The judge explained: “Whilst another employer may have taken a different approach and chosen to leave the claimant on furlough for longer, it cannot be said that it was unfair of the respondent not to do so.” 

The judge clarified that it’s not for an Employment Tribunal to decide how an employer should structure its business, or if it should make redundancies. 

Read the full details of the flight instructor’s unfair dismissal case - Gov.uk

What does this mean for me?

If you were made redundant during furlough, you might have a case for unfair dismissal if your employer didn’t consider furloughing you instead. The 2 cases above show that your employer didn’t have to furlough you, but they did have to consider it before making you redundant. 

Your employer should have a reasonable explanation as to why they didn’t furlough you in order to justify dismissal.

In most cases, you need to have 2 years’ continuous service to raise an unfair dismissal claim. Being on furlough doesn’t interrupt your continuity of service. 

Learn more about unfair dismissal

What now?

If you think you have been unfairly dismissed during the pandemic, or you think your employer has mistreated you during furlough or on your return to work, we’re here to help. Sign up for your free Valla account to start working out your rights.