Commentary

(c) Problem areas

Division BI Pay
| Commentary

(c) Problem areas

| Commentary

(c)     Problem areas

Unfortunately, the drafting of the Treasury Directions has not been as clear as one might have hoped (even making allowances for the speed with which the rules had to be written). This has given rise to a number of problems of interpretation. For example, the question whether workers on sick leave can be furloughed has been particularly difficult (see further para [161.02]), but there are also problems in many other areas. Two areas of difficulty with direct relevance to pay are considered below, namely the question whether wages must be topped up to full contractual rates during furlough and the difficulties associated with calculating the employee's reference salary.

Whether wages need to be topped up. As already explained, the Scheme does not affect existing employment law rights and obligations, including rights under the worker's contract. As a result, even though none of the Treasury Directions requires the employer to top up the employee's wages to their normal amount, the employer will usually be in breach of contract if, in accordance with the Scheme, it instructs the employee to cease all work and then fails to pay full wages; the situation is akin to an unlawful suspension without pay. That proposition holds true unless there is a contractual provision to the contrary, such as a

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