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Furloughed Workers - can they accept employment with a new employer in addition to the 80%

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I’ve been hunting for any proper guidance on above scenario and can’t find anything. Only bit I can see is that a furloughed worker cannot do any work for the employer being paid the JRS.

SallyA
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I was just about to post the same question!

The rule about not working for same employer makes perfect sense but technically there’s nothing to stop someone having more than one job…...

Carolyn McA
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Brexity Tim Martin of Wetherspooon’s seems to think so; he’s apparently suggested that his staff could go and work for Tesco while waiting for their Job Retention payments to kick in. Of course he may not be right!

https://www.theguardian.com/business/2020/mar/24/wetherspoons-denies-abandoning-staff-in-coronavirus-crisis

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SallyA - 25 March 2020 02:57 PM

I was just about to post the same question!

The rule about not working for same employer makes perfect sense but technically there’s nothing to stop someone having more than one job…...

That was exactly the point I discussed with the client - someone could already have a 2nd job so I cannot see it impacting but would be nice for it to be clarified!

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I don’t see that there’s anything which has been announced which would prevent this but we don’t know what the full details of the scheme will be.

The government announced that it was going to prevent all evictions but then it just increased the notice period by a month - so you can’t confidently advise on these ad hoc announcements.

Jon (CANY)
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ACAS state “A worker will stay employed while they are furloughed, but they must not work.” I don’t know if the implication is that they should not “work for the particular employer”?
https://www.acas.org.uk/coronavirus/if-the-employer-needs-to-close-the-workplace

(ACAS also state that is entirely optional for employers whether to pay the further 20%, which doesn’t seem to sit well with normal employment rights ..)

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I’m resurrecting this one because I’m getting more queries from furloughed workers about it.
In normal times, anyone can have more than one job (T&C’s permitting), and gov.uk guidance now covers situations where someone already has more than one employer, but doesn’t reference taking new employment while furloughed.

Advice so far has been to check employment contracts and discuss with their employer, but what if the employer disagrees? I just spoke to someone who’s furloughed and been offered temp work but her employer says no, even though she can stop the new job immediately if required to come off furlough.

And even if the employer agrees, is it OK?  I’ve seen statements online suggesting that it’s not OK if the new working hours fall within the existing contracted working hours, which would make sense from an available-for-work point of view, but this hasn’t been verified by any source I’ve seen. Does anyone know anything official?

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There is no official guidance from HMRC on this in respect of qualification for the scheme, but lots of suggestion that it is ok.

I am not an employment law specialist, but i have spoken to some who are quite concerned. ‘Furloughing’ requires a change to the person’s terms and conditions and they are still employed and as I understand it accrue holiday leave etc…while on furlough. HMRC can set their scheme up with various rules, but they are specifically for the scheme and don’t, in my view, override anything else that might be an issue from an employment law perspective. So even if HMRC say it is ok to work elsewhere in terms of retaining support through the CVJRS, that doesn’t mean that it is allowable in terms of the agreement with the employer from an employment law perspective. I don’t know what the answer is in terms of the employment law position, but i do think they are two separate things.

Victoria

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I’m not an employment law expert either but it seems to me that as things stand at the moment it all depends on what the employee’s current contract of employment says. If it doesn’t prohibit taking an extra job then it remains OK. The scheme as announced will not allow furloughed workers to work for or generate income for the employer using the scheme but that’s all. Whether HMRC will tighten it up remains to be seen. I can foresee them not being very happy about a situation where a full-time employee is getting 80% of wages furloughed with employer A while simultaneously working the same number of hours for the same or better pay for employer B, given the purpose of the scheme is to keep people without work on the payroll for their existing employer. But either way it shouldn’t matter to employer A, though I guess well-advised employers will insist on a change to contractual t&cs; to stop furloughed employees working for competitor employers.

Jon (CANY)
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I note that ACAS have now removed from their website the sentence I quoted above (“A worker will stay employed while they are furloughed, but they must not work.”)

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The advice for employees re furlough ( https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme ) does specify regarding second job -

If you currently have more than one employer
You can be put on furlough by one employer and continue to work for another, if it is permitted within your employment contract.

From that an employer could potentially build it into changes of employment contract?

Lee Forrest
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From the other side - 02 April 2020 03:26 PM

The advice for employees re furlough ( https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme ) does specify regarding second job -

If you currently have more than one employer
You can be put on furlough by one employer and continue to work for another, if it is permitted within your employment contract.

From that an employer could potentially build it into changes of employment contract?

The important words here are probably ‘currently’ and ‘continue’. If the idea behind the scheme is to put someone on a retainer instead of making them redundant, why would an employer do so if the employee then went off to work for someone else? If they are currently employed by two employers, and that is a working and workable arrangement (presumably everyone knows about it), then there’s no reason why one can’t retain the worker, while they continue to work for the other.

Edit- I think of it more like ‘gardening leave’ than anything else…

Edit- although according to the ‘Edinburgh News’(not my normal go to publication for advice) you can work for another employer (if your contract permits it) as long as the next job is outside of your normal working hours. This makes sense, as it means that you should act as though you’re still employed, working your normal hours (even though you can’t do it). You’re being retained on the same contract of employment (more or less).

[ Edited: 2 Apr 2020 at 06:18 pm by Lee Forrest ]
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Personally, I must admit to finding this notion sticks in my craw slightly. People able to receive full wages whilst not being required to work for their employer (and their employer getting 80% of those wages reimbursed through government subsidy) and then going off to get paid more money by doing another job. I’d love to be able to do that but my team aren’t in any danger of being furloughed and we’re doing twice as much work as we usually do for the same wage. Hey ho, swings and roundabouts.

Jon (CANY)
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I was a bit dismayed to read this comment here:

So far as we can tell, the legislative basis for the Coronavirus Job Retention Scheme appears to be s.76 of the Coronavirus Act 2020, which gives HMRC such functions in relation to Coronavirus as ‘the Treasury may direct’, and s.86, authorising the expenditure of money. Nothing in any of the speeches, the Guidance or other publications from Government refers to forthcoming legislation on the Scheme. Those who pine for certainty in future regulations are likely to be left forlorn.

Maybe the best that welfare rights advisers can do in a lot of cases is at least flag up to laid off workers the importance of obtaining employment advice within 3 months of any potential detriment.

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Paul_Treloar_AgeUK - 03 April 2020 09:15 AM

Personally, I must admit to finding this notion sticks in my craw slightly. People able to receive full wages whilst not being required to work for their employer (and their employer getting 80% of those wages reimbursed through government subsidy) and then going off to get paid more money by doing another job. I’d love to be able to do that but my team aren’t in any danger of being furloughed and we’re doing twice as much work as we usually do for the same wage. Hey ho, swings and roundabouts.

I couldn’t agree more.

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That is a very informative read Jon, thank you for sharing

Lee Forrest
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Jon (CHDCA) - 03 April 2020 09:24 AM

I was a bit dismayed to read this comment here:

So far as we can tell, the legislative basis for the Coronavirus Job Retention Scheme appears to be s.76 of the Coronavirus Act 2020, which gives HMRC such functions in relation to Coronavirus as ‘the Treasury may direct’, and s.86, authorising the expenditure of money. Nothing in any of the speeches, the Guidance or other publications from Government refers to forthcoming legislation on the Scheme. Those who pine for certainty in future regulations are likely to be left forlorn.

Maybe the best that welfare rights advisers can do in a lot of cases is at least flag up to laid off workers the importance of obtaining employment advice within 3 months of any potential detriment.

Precisely

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I was even more dismayed to hear Paul Lewis last night on his massively popular TV show telling people it’s fine to do this ... also on his massively popular website:
 
https://www.moneysavingexpert.com/news/2020/03/coronavirus-self-employed-and-employment-help/#wages

“Check whether you can work elsewhere whilst on furlough. There’s nothing in the furlough rules which stops you from taking a job elsewhere if you’re placed on furlough by an employer (doing so wouldn’t affect your furlough pay either). But your employment contract may not allow it, so check.”

Call me a pressimist (or a cynic) but I can’t help thinking it will come back and bite employees and potentially employers, for example, if HMRC ever get round to checking PAYE/tax records of furloughed employees who seem to have acquired another income source after 28 Feb.

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Income tax and NI will apply as usual to furloughed workers so those who are in the fortunate position of getting two sources of income will find they are paying a lot more tax and NI than they’re used to, if the furlough scheme has to run for a while.

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SallyA - 03 April 2020 11:06 AM

I was even more dismayed to hear Paul Lewis last night on his massively popular TV show telling people it’s fine to do this ... also on his massively popular website:
 
https://www.moneysavingexpert.com/news/2020/03/coronavirus-self-employed-and-employment-help/#wages

“Check whether you can work elsewhere whilst on furlough. There’s nothing in the furlough rules which stops you from taking a job elsewhere if you’re placed on furlough by an employer (doing so wouldn’t affect your furlough pay either). But your employment contract may not allow it, so check.”

Call me a pressimist (or a cynic) but I can’t help thinking it will come back and bite employees and potentially employers, for example, if HMRC ever get round to checking PAYE/tax records of furloughed employees who seem to have acquired another income source after 28 Feb.

I half saw that- i’m sure i heard him say something like ‘you could work elsewhere to top up the 20% you’ve lost’. What is Martin Lewis an expert in, exactly? Not sure it’s employment law.  And as others have said, you’d be paying through the nose for a second job. Someone on NLW will lose around £60 per week in salary, which is significant, but perhaps other post CV measures inc. less debt recovery, lower costs, and increased benefit entitlements will mitigate that significantly. It’s potentially a bit irresponsible encouraging second jobs (vs staying at home safe and without coming into unnecessary contact with others).

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I think whatever Martin Lewis is or isn’t expert in, he is rich enough and smart enough not to say something on national TV without being confident that it’s correct…

I can understand why it feels cheeky to have one job paying your wage and then taking on a second job at the same time, but I suppose there is also an argument that is also in the public interest to incentivise people to take up “key work” roles.  If someone has been furloughed from one full time job and wants to go and stack shelves at Tesco for an additional effective net of less than £6 per hour rather than sitting at home doing nothing, is that really something which ought to be discouraged?

Lee Forrest
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Elliot Kent - 03 April 2020 02:36 PM

I think whatever Martin Lewis is or isn’t expert in, he is rich enough and smart enough not to say something on national TV without being confident that it’s correct…

Hmmmm. I think he’s probably rich enough to say what he wants on TV. Isn’t that how it normally works? But he does have a brand to protect, so I expect it’s all prepared and fact checked in advance. It was a seemingly fast paced., live, thirty minute show, though, so not the best format to be giving nuanced advice and information.

Essentially, as long as he said- ‘ensure you’ve got the permission of your employer’ he’ll be ok.

[ Edited: 3 Apr 2020 at 03:28 pm by Lee Forrest ]
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Lee Forrest - 03 April 2020 03:16 PM
Elliot Kent - 03 April 2020 02:36 PM

I think whatever Martin Lewis is or isn’t expert in, he is rich enough and smart enough not to say something on national TV without being confident that it’s correct…

Hmmmm. I think he’s probably rich enough to say what he wants on TV. Isn’t that how it normally works?

Well I was more thinking in terms of him being well worth suing if he told you this was all fine and it turned out not to be.

Lee Forrest
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Elliot Kent - 03 April 2020 03:23 PM
Lee Forrest - 03 April 2020 03:16 PM
Elliot Kent - 03 April 2020 02:36 PM

I think whatever Martin Lewis is or isn’t expert in, he is rich enough and smart enough not to say something on national TV without being confident that it’s correct…

Hmmmm. I think he’s probably rich enough to say what he wants on TV. Isn’t that how it normally works?

Well I was more thinking in terms of him being well worth suing if he told you this was all fine and it turned out not to be.

Haha. I just thought it was bit fuzzy- I edited my post in case he sues me.

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Updated (on 4/4/20) guidance on gov.uk says -

If your contract allows, you may undertake other employment while your current employer has placed you on furlough, and this will not affect the grant that they can claim under the scheme. You will need to be able to return to work for the employer that has placed you on furlough if they decide to stop furloughing you, and you must be able to undertake any training they require while on furlough. If you take on new employment, you should make sure you complete the starter checklist form with your new employer correctly. If you are furloughed from another employment, you should complete Statement C. Any activities undertaken while on furlough must be in line with the latest Public Health guidance during the COVID-19 outbreak.

Lee Forrest
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Daphne - 06 April 2020 10:26 AM

Updated (on 4/4/20) guidance on gov.uk says -

If your contract allows, you may undertake other employment while your current employer has placed you on furlough, and this will not affect the grant that they can claim under the scheme. You will need to be able to return to work for the employer that has placed you on furlough if they decide to stop furloughing you, and you must be able to undertake any training they require while on furlough. If you take on new employment, you should make sure you complete the starter checklist form with your new employer correctly. If you are furloughed from another employment, you should complete Statement C. Any activities undertaken while on furlough must be in line with the latest Public Health guidance during the COVID-19 outbreak.

I guess the thing that people need to be aware of here then is the statutory notice period with their second employer.

If the employer who has furloughed me decides they need me back in the office tomorrow, and I’m working for another employer during these working hours, the second employer needs to be prepared for me not to work my notice period (which i also guess is where the commentary on accepting a second job outside of your normal contracted hours comes from). The first employer may also decide to get me to catch up on all of the online training that i haven’t had time to do, and require me to do that while on furlough, too.

[ Edited: 6 Apr 2020 at 10:59 am by Lee Forrest ]