Commentary

(b) Main features of the Scheme

Division BI Pay
| Commentary

(b) Main features of the Scheme

| Commentary

(b)     Main features of the Scheme

The Scheme only covers those employees who are 'furloughed'. This term has not previously been used in UK employment law and seems to have been imported from the USA, perhaps reflecting the current Chancellor's period at Stanford University. It is defined in the First and Second Treasury Directions as meaning a worker who remains employed but has been instructed by his employer to cease all work for a period of at least 21 calendar days 'by reason of circumstances arising as a result of coronavirus or coronavirus disease': see para 6.1 of the Second Direction. The requirement to cease all work was an essential component of the Scheme as it operated until 1 July 2020, when the concept of flexible furlough was introduced and meant that employees who were put on short-time working between 1 March and 30 June 2020 fell outside its scope. Similarly, employees who were laid off for less than three weeks at a time were not covered either. Although the Scheme as it operated until 1 July 2020 was clearly intended to avoid redundancies, para 6.1 of the First and Second Treasury Directions does not require employers to prove that they would have made furloughed employees redundant were it not for the Scheme. In many cases, however, that will be the reality.

The operation of the Scheme from 1 July 2020 to 31 October 2020 is dealt with at para 40.19 ff below. The operation of the Scheme from 1 November

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