Legal

How to avoid post-furlough whistleblowing claims

15 Mar 2021 By Alana Penkethman

Employee allegations could include being forced to work while on the job retention scheme, and working in an unsafe environment, says Alana Penketham

Forced redundancy is rarely taken well by employees whatever the business reason and, when it happens, employers should expect to see an increase in employment claims. One of the most likely claims that many employees will make is that they were required to work in some capacity while on furlough. We have already seen a sizeable number of whistleblowing claims relating to the coronavirus job retention scheme and employers should be prepared for the event.

The terms of the scheme are clear: “During hours which you record your employee as being on furlough, you cannot ask them to do any work for you that: makes money for your organisation or any organisation linked or associated with your organisation; or provides services for your organisation or any organisation linked or associated with your organisation.”

The penalties for those found guilty of abusing the scheme are equally clear: “Companies will be fined, while directors of companies which have subsequently been liquidated could face personal liability for the falsely claimed furlough costs.” Imprisonment for convicted fraudsters is also a possibility as exploitation of the scheme amounts to defrauding the Treasury.

The government’s position on this matter is now being tested and we are starting to see claims within the employment tribunal where employees have been instructed to work in excess of their furlough hours. 

Find out if you have a problem

Many larger employers won’t necessarily know if they have a problem and may need to do some digging. There will be circumstances where some managers have asked for support while an employee was furloughed and others where an employee has voluntarily offered to help. Employers should try to find out how prevalent the problem might be as what may have been considered as a welcome relief from the boredom of home life can quickly turn into something more insidious when an employee is out of a job.

Likewise, employees may claim that they were required to work in an unsafe environment. This will also constitute a protected disclosure if the employee has raised concerns. The advice in respect of creating a safe working environment has been widely publicised by the government. However, it has become clear that many employers are ignoring these guidelines, and demanding that employees continue to attend the workplace. 

Whether the employee feels safe or not is a subjective test. While the tribunal will need to determine whether the employee’s belief was reasonable, the employer will be expected to have taken all reasonable steps to resolve the employee’s concerns. This will be particularly relevant where employees have additional protection in respect of disability discrimination. 

Speak with your employees regularly 

Employees are individuals with individual needs and concerns. Employers should consult regularly to ensure that employees do feel safe, and all reasonable measures should be accommodated to minimise the risk of a claim. 

If an employee raises concerns as to how their employer is behaving, in respect of either the furlough scheme or even more general on issues such as health and safety, this will constitute a protected disclosure. Once an employee has made a protected disclosure, that employee cannot lawfully be subjected to a detriment in respect of the same. A detriment includes less favourable treatment, disciplinary action or dismissal. 

Further, a dismissal in such circumstances will be regarded as automatically unfair. It is therefore imperative that employers abide by the rules and guidelines set out in respect of both the job retention scheme and the health and safety rules if they are to avoid claims in the employment tribunal. 

Alana Penkethman is a chartered legal executive at Parker Bullen

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