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furloughing 80& or 100% or both?

furloughing discrimination ?

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A client of mine wants to furlough an office worker on 80% with no top up and his salesman on 80% with the 20% top up.

I have not seen any advise on this but it does feel as though they are leaving themselves exposed to a discrimination charge.

Does anyone have any thoughts or experience of this?

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By neiltonks
16th Apr 2020 11:09

Furlough involves a variation to the employee's contract of employment. The guidance says:

"Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way."

This is always open to interpretation depending on the circumstances but if, for example, the office staff are mainly female and the sales staff mainly male, there could be problems ahead!

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By paul.benny
16th Apr 2020 11:59

It would only be unlawful discrimination if it was on the basis of a protected characteristic (gender, race, etc). Possibly it could be construed as indirect discrimination if all sales people are male and all office workers female.

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Replying to paul.benny:
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By Mr_awol
16th Apr 2020 14:50

paul.benny wrote:

Possibly it could be construed as indirect discrimination if all sales people are male and all office workers female.

I was going to include a reference to this possibility in my post, and am glad someone else has raised it as a possibility. For me, it demonstrates a major failing in the clamour for 'pay equality'. This is incredibly off topic and has ended up being longer than I'd planned but here we go.....

As you've already inferred (but I haven't quoted) the decision of who to furlough, whether to top up, etc should be made fairly. However, fairly can be construed in many ways. As you rightly say, a furlough requires agreement/negotiation with the employee.

It is safe to say that the salesperson (if he or she are any good at their job) will be a pretty confident negotiator. The OP doesn't say what role the office bod fulfils, but they might not be so bullish, even though their role may be equally important and/or of equal value.

So let's assume for convenience we have a male salesman and a female management accountant, both earning similar incomes and both similar ages and both fairly long serving. The MD goes to both, individually, and tries to get them to drop 20% of their income to go on furlough. The company cant really afford to pay both in full but they certainly cant afford redundancies due to cost and/or need to keep these positions filled once the business recommences trading.

On one hand, you could have the salesman driving a harder bargain, or perhaps the accounts lady understands the company's position better. It's easy to see how/why the OP's client might end up topping up the salesman but not the office person. It is normal market conditions and there will be natural inequality between people. Less so in the public sector and very large companies, if formal pay scales are in place, but anywhere there is flexibility for negotiation.

The only time it becomes a problem is when some do-gooder forces the company to declare a gender pay gap, or (using the example above the accounts lady realises the salesman is still earning full pay and rather than realising it was her failing and/or learning from it, bleats about sexual discrimination.

By the way the same would be true if it was the salesman who only got 80% because he was acutely aware of future income reducing, whereas the accounts lady knew she was entitled to £x redundancy if she stood her ground and knew the company would be in a position to pay her out. Just in case and WASPI sympathisers are reading...……...

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By ireallyshouldknowthisbut
16th Apr 2020 13:07

Presumably the sales guy normally gets a bonus so is already on not much.

In the rush to do this, its worth considering it carefully to ensure your business has not claims against it in 6 months time.

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Replying to ireallyshouldknowthisbut:
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By brash
16th Apr 2020 13:28

They get a good basic salary

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JCACE
By jcace
16th Apr 2020 14:07

It would be worth the client's while to fully document the rationale in offering the 20% top-up to some and not others.

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By Mr_awol
16th Apr 2020 14:58

What role does the office worker occupy? How integral is the salesperson to the company's future income?

I would always advise clients to consult a legal professional or HR service on employment law matters, but if for example we are talking about an integral member of the sales team who has a good relationship with important customers then it's obvious the client will want/need to be able to demonstrate to the employee that he did what he could to look after them. That employee will need to be available ASAP to get the business back up and running again. They might even be brought back from furlough early.

If the other employee provides basic admin, is easily replaceable and the client is less bothered whether they leave or not, then this might be why they don't see any reason/need to pay the full whack.

Of course you've then got emotive reasons. Does one have a family, mortgage, etc and the other young free and single living with mum and dad? These reasons should generally be kept out of it I feel, but will influence people. We looked at potential furloughs and decided not to in some cases because it would cause people unnecessary hardship.

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Morph
By kevinringer
18th Apr 2020 10:21

I want to make you aware that 3 documents were published on GOV.UK 17/04/20 evening which may help you.

1. New guide with worked examples at https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim.... This addresses holiday pay including bank holidays.
2. New step-by-step guide at https://www.gov.uk/government/publications/coronavirus-job-retention-sch....
3. The employers guide has been updated (this is version 5) at https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus....

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