HMRC updated their guidance for employers, ‘Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme’, under the section headed ‘If your employee’s health has been affected by coronavirus (COVID-19) or any other conditions’ on 5 January 2021 to make clear that employees may be furloughed under the CJRS, if they are unable to work, including from home or working reduced hours because they:
- have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household.
HMRC also updated their guidance on 10 December 2020 to make clear that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus.
In our view, the categories of employees set out in HMRC guidance who are eligible to be furloughed under the CJRS is not an exhaustive list. When determining who may be eligible for furlough under the CJRS, employers should keep in mind the broader wording of The Treasury Direction which sets out the purpose of the CJRS, which is a Treasury scheme for employers to claim payment towards employees’ wages “in respect of employees who are within the scope of CJRS arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease” and “arising from the measures taken to reduce further transmission, loss of life, demands upon healthcare resources and damage to economic activity in the United Kingdom”.
A recent TUC survey of 50,000 working mothers found that 71% of those who had applied for furlough following the latest school closures had their requests turned down by their employer. The TUC has urged employers to ‘do the right thing’ and offer furlough to all parents affected by school closures. Of course, employers are not under any statutory obligation to place eligible employees on furlough under the CJRS and doing so may not always be feasible for operational reasons (and there is still a small cost to employers using the CJRS), but school closures during the period of lockdown are likely to make it more difficult for employees to make alternative arrangements for the care of their children, such that employers should give serious consideration to the availability of furlough for staff who may have difficulty with working due to caring responsibilities as a result of the pandemic where practical; particularly to avoid potential indirect sex discrimination claims.
The statutory right to time off for dependants provides for a period of unpaid leave to make arrangements for care of dependants because of the unexpected disruption or termination of arrangements for the care of a dependant. This would cover time off to arrange alternative childcare in the event of a school closure, but it does not cover extended time off for employees to look after their children themselves. Employees may also agree a period of flexible working or unpaid leave with their employers to accommodate caring commitments.