Redundancy, furlough, and new job

[NarcissistsEyebrows]

After legal/HR opinions please.

My company is running voluntary redundancy. I've applied, no official acceptance yet but I've been given an informal but pretty firm agreement by my head of dept, they're not going to say no to anyone, and I've not been there that long so I'm cheap to get rid of and expendable! Especially compared to most other people applying.

I've for a month of AL outstanding, so am planning to take it as my final 4 weeks of working time.

I've agreed a final employed date of 10 Nov, so final work date of 9th Oct, then AL until I drop off the system.

Work want to put me on furlough from 10th Oct until 31st to maximise income, I don't mind either way so I agreed.

All good so far.

The complication comes when I received my furlough confirmation letter. Furlough team don't speak to redundancy team, and redundancy isn't formalised yet, all provisional.

Furlough letter mentions you must not work for a third party while on furlough without prior written consent from my company. I have a new job which I'd like to start in Oct, so while I'm having AL at the tail end of my notice period. I'm also on furlough.

If I didn't seek prior consent, and just started my new job while still 'employed' by my current employer, what's the worst that could happen to me?

I'm in two minds whether to seek permission or forgiveness, if you'll excuse the saying.

There is no conflict between the companies.

My rationale is I'm only going on furlough to help my current company, I'll also be using up my AL so will be off 'under my own steam', so if its just a furlough conflict I could withdraw my consent to be on furlough.

If there is a more complex legal issue and I could get in trouble I need to know.

I'm not worried about the tax situation, I'll sort it out in due course, and my redundancy payout, small though it is, dwarves any extra tax I'd pay for a couple of weeks even if I couldn't reclaim.

I might well ask my company for permission, but what could the consequences be if I didn't?

Thanks in advance

To add, I won't sign my new contract until I have got formal confirmation of redundancy and my 10 Nov leaving date

Hopeful morning bump

For a start, look at the condition of your redundancy with your current company. Many policies have a clause that states that if you were offer a job before the company makes you officially redundant, redundancy doesn't apply and any money handed over can be claimed back.

You cannot work elsewhere whilst furloughed - whether on leave it at your desk. If you have been there a short time, you are probably not entitled to much/any payoff? To ensure you can accept and start a new job, why don’t you just resign? Most work places will pay you in lieu for holiday when you resign.

Thanks for the reply.

I'm pretty sure this won't apply for my company - I and others have secured new jobs and management are aware. They don't mind, they're just happy they can cut staff numbers and the people leaving are able to move forwards with new opportunities. There is lots of goodwill. We're regularly thanked for going on furlough too, the management impress that it really helps the business.

It's a really good employer, I'm 99% sure if I asked consent to start my new job early I'd be given it, but I'd like to make this decision pre-armed with knowledge about what might happen to me if I just went ahead and did it without telling anyone.

I haven't seen my redundancy Ts and Cs yet but from my informal chats there are no problems taking VR with another job lined up - they'd expect us to have been looking.

I thought you could work or take a second job on furlough. Just not with the same company. Sounds quite reasonable to say you must tell us first, which you can because you are leaving anyway. Old company still get more out of the deal, if they refuse they could have to pay you full wages. Can’t see them willing to do that.

Yes you pay extra tax but have security of starting job straight away in current climate.

Pamplemousse thanks for you opinion, not to sound arsey but I want advice on my legal position, not opinions on what I should do.

I'm only on furlough because I agreed to be to help my company get gov support. I can quite happily withdraw this consent and be on AL without furlough, makes no difference to me. I will be in my final 10 days of employment and not in work, though officially employed.

Hi op, I'm in the same position.

You are correct that you can work elsewhere whilst on furlough and you are supposed to have consent from your manager - personally id just go ahead, but I don't know the legal position.

The only thing is that you cannot be furloughed and on annual leave, any annual leave days have to be put through on your payslip as annual leave, whereas furlough days are called as such and evidenced to HMRC. So the correct thing for your employer to do would be either put you on annual leave for your final month as you suggested OR put you on furlough and then pay your annual leave days on top as a final payout - obviously neither of these options give them the money saving they are hoping for, but that's the furlough rules as annual leave is protected

If you been furloughed previously? It sounds from your post that you haven't and that your company are planning to use your month notice/AL to claim. The last date for putting people on furlough for the first time was 10th June. They won't be able to just add you for October. Plus October is 60%' are they topping you up to 100%? Just be careful of what you agree to.
I'm not an employment lawyer but I do employ people.
You can take redundancy, and ask for your AL to be paid to you, you don't have to take it as notice.
Then you can start your new job. The furlough scheme is there to protect jobs so isn't really applicable here.

I have been furloughed before, twice! And my employer top us up to 100%. As I say, they're a good employer, I've been very happy there.

We've all been encouraged to take AL during furlough, and my company is a big 'proper' employer, so I'm pretty sure they've checked the legality of this. It gets put through as 'furlough AL' on their HR system.

www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

They can't furlough you if you weren't furloughed before - and either way doesn't really need to concern you unless they plan to cut your salary during that period too?

When did the redundancy notice happen? There may be a delay as the timelines you mention might not be legal. If you accept it then you have the following options;

1. finish on day 31 with pay in lieu of notice period and any outstanding AL paid in full with your final salary.
2. Or you work your notice period and finish without outstanding Al paid in final salary
3. Or work your notice period, then take AL and get paid final salary

All scenarios it is complicated to have 2 full time jobs from a tax perspective (not illegal but complicated having two employers for the same period for full time hours) So if you plan to start a new job on Oct 10th you likely need option 1 given it's 18th September today.

You need a formal offer of redundancy with the options laid out ASAP.

Sorry should say day 31 of a 30 day consultation period ....

See you have been furloughed before but again this doesn't really need to concern you. It's all about what your redundancy options are for getting what you are owed.

"If I didn't seek prior consent, and just started my new job while still 'employed' by my current employer, what's the worst that could happen to me?"

The worst that could happen is your employer won't pay you for days you weren't available to work. That seems very unlikely.

Flowery that's useful. Given I'll be on AL for those days then presumably they'd have to pay me, as I'm not supposed to be available for work?

They could not pay me if they wanted to recall me from AL to work, but then they'd owe me the AL payment after I've left, so it balances out?!

Do you mind me asking if this is a legal opinion or a HR view or 'just your opinion'?

YoBeaches I will be getting PILON regardless, I've got a much longer notice period but so have most people at my work, and the company has decided they want everyone gone sooner, so are paying everyone their full PILON

Basically I want to avoid any chance of a gross misconduct for breach of contract situation, where I could get my redundancy payment taken away from me. Its not a fortune but its a few thousand pounds which I am keen not to lose.

It will depend on your individual contract. The furlough bit isn't really relevant as you are being topped up to 100% anyway.
My contract, for example, says I can't work in another job whilst in the employ of..... unless I obtain express written permission. You will still be employed, albeit on annual leave.

Today yes that's exactly it, thanks for being more succinct than I managed.

My question is, legally, what is the worst that could happen to me if I breached my contract of employment which said I wasn't allowed to work for another company without written permission?

Given I'm leaving the employer so don't mind if they're annoyed with me, could anything worse happen?

The furlough thing OH brought up as it might make my employer in breach of furlough rules, therefore if they're in trouble and are find it might make them more pissed off with me, does that translate into consequences?

They can pay you accrued AL and you can be in a new position.

The furlough is confusing things. Are you earning under or above the furlough threshold?

@NarcissistsEyebrows

Flowery that's useful. Given I'll be on AL for those days then presumably they'd have to pay me, as I'm not supposed to be available for work?

They could not pay me if they wanted to recall me from AL to work, but then they'd owe me the AL payment after I've left, so it balances out?!

Do you mind me asking if this is a legal opinion or a HR view or 'just your opinion'?

For time you are on annual leave they'd have to pay you, yes. From a legal perspective the argument would be breach of contract. Dismissing you for gross misconduct would be pointless and not hold up, and why would they bother.

Their financial losses from your 'breach' would be zero, because they would have had to pay your annual leave anyway. And in fact by keeping you employed rather than terminating early, they are financially up on the deal as they can claim furlough, which they cannot as soon as you are no longer an employee.

In terms of withholding your redundancy pay, again they wouldn't get away with this. Your position is redundant, that has been confirmed, and that is the reason your employment is terminating. To avoid a redundancy payment your employment would need to end a different way, and you doing some work elsewhere whilst in the alst few days on annual leave wouldn't constitute a resignation from you, or such a fundamental breach that they could consider you to have left with immediate effect.

I think the risks are extremely slim that they'll try anything, and I think anything they do try could be fairly easily defended.

In terms of whether it's a legal/HR opinion or my own, well both! I have been in HR for 21 years, a consultant for 12 of those and I sit on tribunal panels in my 'spare' time. So I suppose I roughly know what I'm doing..

Thanks flowery! Your opinion and experience is exactly what I was after, and luckily it aligns with what I was hoping to hear

It feels 'moral' because as you say, the company only gain by having me on furlough, it makes no difference to me since I'm on AL too. I suppose I could have kicked up a fuss and refused to talk AL and demanded it be paid it after furlough ends, but I'm perfectly happy to take my cheque and disappear into the sunset, so everyone wins.

I have a tendency to overshare unnecessary information in the name of being helpful, but if my work don't need to know what I do in my final week of AL before my employment is terminated, I'm minded to ignore that voice and not tell them

My worry is if I ask permission then I migjt catch someone on a bad day who refuses it, then if I go ahead I'll be going against something active. As it is I can always plead ignorance.