Head of Employment Law, Katie Ash answers this frequently asked question "Unless you are volunteering for your employer under Public Health England guidance, then the guidance to the Coronavirus Job Retention Scheme (CJRS) confirms that no work must be undertaken by employees during a period of furlough.
This will however change from August when the government says furloughed workers can return on a part-time basis, and that for the period of the remaining furlough scheme between August and October, you may be able to work part time, and be furloughed for the remainder of your hours.
If a claim is made by your employer, the ability of HMRC to question the granting of the support under the CJRS will certainly be under scrutiny and if it is found that you or your employer have breached the rules of the CJRS, it is likely that any monies claimed under the CJRS will need to be paid back.
Unless you actively engage and consent to undertaking work whilst furloughed, we do not see any basis on which HMRC or your employer could seek to recover the monies from you personally. However, the CJRS guidance is clear that you must not perform any services or undertake any work that would generate revenue for your employer whilst you are furloughed. If you do so, then any claim made under the CJRS will be void.
We would stress, that you also can’t undertake any work for your employer or a business linked to them (such as other companies within your employer’s group), even on a voluntary basis! If your employer asks you to undertake any ‘voluntary’ work, then this is going to break the rules of the CJRS and invalidate any claim for support they make.
We expect that HMRC will undertake audits over the next few years given the requirement that your employer keeps written records about furlough for at least five years.
If your employer pressures you into undertaking work for them, or asks you to ‘volunteer’, then we would advise that you speak to them in the first instance to explain why you feel that it is inappropriate for you to do so, and that it actually poses risks not only to you, but to them. If this doesn't resolve matters, then you do have a right to raise a grievance under your employer's grievance procedure and ACAS have provided updated guidance on how grievances should be dealt with whilst an employee is furloughed which can be found here.
Failing that, if you are dismissed or treated less favourably because you have refused to undertake work for your employer, then it may be that you have a claim for unfair dismissal; and even if you don't have enough service to bring an ordinary unfair dismissal claim (which is normally two years) there may be an argument to say that you have been dismissed because you have asserted a statutory right or have blown the whistle and are therefore protected by employment law and can pursue a claim even if you don’t have two years’ service."
Please do not hesitate to call our employment law team who can help with all of your queries at this time.