Who Should I Choose to Furlough?

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Who Should I Choose to Furlough?

All sizes of business are taking advantage of the Governments new Job Retention Scheme and placing staff on ‘furlough’ at 80% of salary, its reclaimable through HMRC. It’s helps them to cope with having to close down operations or scale them back without having to make staff redundant. It will keep the country on its feet after the Pandemic. It will also ensure people are not going to try and go out seeking an income.
But many businesses don’t need to furlough everyone; they need a skeleton staff, either to keep operational on a smaller scale, or to keep things like payroll and other administration happening while normal services are ‘mothballed’.
You can keep hold of your workforce knowing they are receiving some money at least until things pick up again
If you don’t have to furlough everyone, how do you decide who to keep and who to place on furlough?

There are five key issues to remember;

1. There is no established formal process. This is a completely new thing, although it is like the concept of unpaid lay-off used in some industries. So unlike redundancy, there is not a well-established fair procedure that you can follow, or selection criteria you can rely on as being lawful and fair.
2. Because you are not dismissing anyone, you don’t have to be concerned about unfair dismissal claims.
3. Unlike redundancy, it is likely that many if not all your workforce may want to become furloughed. So, you’re selecting people for what as some see as a positive rather than negative thing.
4. You are in quite a hurry so lengthy selection procedures, skills assessments or scoring processes are unrealistic.
5. Discrimination laws will still apply. Be very careful that whatever selection method you use cannot appear as being discriminatory on the basis of one or more protected characteristic.

With those issues in mind we would recommend the following:

· Consider first which jobs you most need to keep going, and how many of each job.
· Contemplate prioritising anyone with caring responsibilities, vulnerable people or those with poor health. There is a risk of age discrimination against younger workers if a high proportion of vulnerable category are older, yet discrimination with a legitimate aim is acceptable, and in these circumstances that will be ok.
· Ask for volunteers (making sure you are clear first that there is no guarantee volunteers will get a role) – this may be a useful starting point and might rule out some people.
· If you have lots of people in similar situations doing the same job, consider drawing names out of a hat or another completely random selection process.
· Consider rotating workers on and off furlough. Furlough periods must be for at least three weeks, so if you want to rotate, and have some workers come back and take turns, you’ll need to bear in mind how long this may last. The Government has currently said three months, but there may be an extension if necessary.
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