Q&As

If an employee who is entitled to 100% of their salary for their notice period on furlough (due to sections 88–89 of the Employment Rights Act 1996) is then placed on flexible furlough and works two days out of a five-day working week during their notice period, at what rate does their notice pay have to be paid? Furthermore, if they have contractually agreed to be paid a reduced salary of 80% when working, can the employer continue to pay them this during their notice period for the days worked?

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Published on LexisPSL on 29/07/2020

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • If an employee who is entitled to 100% of their salary for their notice period on furlough (due to sections 88–89 of the Employment Rights Act 1996) is then placed on flexible furlough and works two days out of a five-day working week during their notice period, at what rate does their notice pay have to be paid? Furthermore, if they have contractually agreed to be paid a reduced salary of 80% when working, can the employer continue to pay them this during their notice period for the days worked?
  • The employee’s right to a week’s pay during the statutory notice period
  • Normal working hours
  • Normal working hours
  • Calculating a week’s pay
  • Normal working hours
  • No normal working hours

The answer to this Q&A is likely to depend on:

  1. whether there are normal working hours or no normal working hours for the employee in question, and

  2. if there are no normal working hours, the employee’s average weekly remuneration for the relevant twelve-week period

For information on flexible furlough under the Coronavirus Job Retention Scheme (CJRS) generally, see Practice Note: Coronavirus Job Retention Scheme (revised version 1 July to 31 October 2020).

For information on the use of the CJRS grant during the notice period, see Practice Note: Coronavirus Job Retention Scheme (revised version 1 July to 31 October 2020)—Using the CJRS grant to pay employee during notice period.

The employee’s right to a week’s pay during the statutory notice period

Where notice of termination of employment is given, either by the employer or the employee, and the employee has been continuously employed for one month or more, then the employee has certain entitlements during that notice period.

In broad terms, the employee is entitled to be paid a week’s pay for each week of the statutory notice period, subject to the qualifications and caveats noted in Practice Note: Statutory minimum notice—Employee entitlement to pay during statutory notice period.

The effect of these provisions may mean that, where an employee who is otherwise absent from work, eg on maternity leave, or long-term sickness absence, and who has exhausted their contractual

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