In the second in the Kings Chambers series of employment law briefings Anisa Niaz-Dickinson considers the question of whether an employee can take up another new job whilst on furlough.
Not a straightforward position
This is an interesting question and is one of the many queries that we have dealt with this week. It is not quite as straighforward as it might first appear. The Scheme explicitly prohibits employees from working for the employer who has furloughed them as follows:
“Employees you can claim for
To be eligible for the subsidy, when on furlough, an employee can not undertake work for or on behalf of the organisation.
If your employee does volunteer work or training
A furloughed employee can take part in volunteer work or training, as long as it does not provide services to or generate revenue for, or on behalf of your organisation”.
You may have seen reference in the Press to the rule that employees who are furloughed cannot take up other work, for other employers, during their normal working hours. This could be more related to contractual obligations between the employer and employee however rather than the Scheme as the Scheme does not explicitly address this issue.
Not a source of profit
However it is clear that the Scheme is not intended to allow employees to profit from their furlough but for them to be compensated for the income they would have received if they had remained in work. Therefore, if a purposive approach is applied to the Scheme the reference to the prohibition on income generation would also apply to work for other employers during the same working hours although that is not explicitly stated.
Contractual amendments may be necessary
It may be advisable for employers who are paying salary to furloughed employees and then claiming back to carefully consider contractual amendments that address this situation given that the Scheme is not explicit. In reality the employee remains employed and must comply with all contractual obligations, which reinforces the need for clarity within any amended terms and conditions. Likewise employees who wish to take up other work would be well advised to seek advice from their HR Departments and HMRC before doing so.