Furlough and Discrimination at Work Claims

Author:
Deana Bates
Employment Law Solicitor
Date:
21/04/2020

If your employer has furloughed some staff whilst others are continuing to work, you may wonder about their selection processes. You’ll probably want to know how they made these decisions, whether it’s been a fair process and whether there will be any impact later on if it comes to redundancies.

We asked one of our Employment Law Solicitors to look at employee rights when it comes to selection for furlough and whether there is any potential for a discrimination at work claim if you have been selected for furlough because of your age or other Protected Characteristic (explained below).

If you’re concerned about your selection for furlough, get in touch with our Employment Law Solicitors for free initial legal advice.

Call us on 08002605010 or request a callback and we will help you.

Selection Process for Furlough

You’ll probably want to know how your employer came to the decision on who to furlough. Employers should be applying a fair selection process which they should be able to explain to you and their other staff.

After all, if you are one of the staff members who has been put on furlough, you may be at a disadvantage if you’re only getting 80% of your pay, up to a maximum of £2,500 a month whilst the staff who are still working are getting all of their pay.

You should ask your employer how they reached the decision to furlough you. They need to make sure they don’t select a person or group of people to be furloughed on the basis of a Protected Characteristic such as, age or sex, as this could mean that you could make a claim for discrimination against your employer.

Protected Characteristics are:

  • Age
  • Disability
  • Gender reassignment
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation
  • Marriage and civil partnership
  • Pregnancy and maternity

Some Specific Examples

Disability

If your employer is applying a selection criteria to decide who to furlough based on productivity, they should make sure that any decreased output levels are not linked to a disability.

If your employer decides to put you on furlough because you have a pre-existing health condition, you could have a potential disability discrimination claim if you are considered a disabled person under The Equality Act 2010 because of your health condition.

Instead of putting you on furlough leave because of your disability, which could result in a loss of income, your employers should think about any reasonable adjustments they could make to allow you to continue working.

Pregnancy/Maternity

If your employer has decided to put all pregnant employees on furlough without giving you a choice, you could have a potential discrimination claim. This is because you could be financially worse off by being placed on furlough leave. Your employer may be making this type of decision to protect pregnant employees, but having an open and frank discussion and exploring any possible alternatives such as remote working before making a final decision would be a better option.

Age

If your employer decides that they are going to isolate a particular age group from the workplace and place them on furlough because of their age, this could be age discrimination at work. Again your employer may be trying to protect you, but they should be open about their rationale and consult with you.

It’s important to make sure that any blanket decisions your employer makes are not discriminatory.

Your employer does have to ask your permission to be furloughed. If the alternative is to lose your job entirely, furlough is probably the best outcome in the circumstances.

You should expect your employer to fully explain what being furloughed means to you before you make that decision.

If you don’t want to be furloughed and your employer decides to enforce your pay cut without your agreement, you could have a claim against your employer, including a claim for breach of your employment contract.

If you’re not sure whether your employer has acted legally, call and speak to one of our Employment Law Solicitors.

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