If you are unable to work during the pandemic because you care for a disabled person, including a disabled child, your employer can claim back up to £2,500 a month or 80% of the cost of your salary. The scheme has now been extended until October 2020 and may be extended beyond that.
From July there will be new rules, not yet published, allowing furloughed workers to return to work part time, we do not yet know how these new regulations will operate but will update our fact sheets as soon as the regulations have been published.
The government guidance on the Coronavirus Job Retention Scheme states explicitly that employees unable to work due to caring responsibilities arising from COVID-19 can be furloughed. This means that your employer is able to claim back the cost of furloughing you from the government, therefore it is unlikely to be reasonable for your employer to refuse to pay you 80% of your salary, up to a total cost of £2,500 a month during the operation of the scheme. Employees with caring responsibilities
Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed.
S19 of the Equality Act 2010 makes it unlawful for an employer to operate a practice, criterion or provision that disadvantages people because of disability, including because of association with a disabled person, unless they can objectively justify it. People who care for a disabled person are more likely than those who do not care for a disabled person to be unable to work during the pandemic, therefore, not continuing to pay carers of disabled people unable to work could be indirect associative disability discrimination unless the employer can justify this. The government has established a scheme to reimburse employers up to £2,500 / 80% of wages if the employee is unable to work because of COVID-19, employers are unlikely to be able to justify refusing to pay an employee who cannot work because of COVID-19 reasons relating to the disabled person they care for – e.g. needing to shield high risk disabled people; closure of special schools, days centres or other support services, etc. I am a key worker, my employer says key workers will not be furloughed Even employees who are key workers can be furloughed if they are unable to work because of COVID-19 reasons. The government website says they do not expect public sector employers or public service provider employers to furlough many people because of the nature of the work, but this does not mean that key workers who are carers for disabled people cannot be furloughed.
My employer says I must take unpaid leave and / or use my annual leave to cover my caring responsibilities
The existence of the Job Retention Scheme means your employer is unlikely to be able to rely on the cost of continuing to pay to justify not paying you at least the value of the JRS grant available to them, if you are not able to work because of your caring responsibilities during the pandemic.
My employer says they are not participating in the Job Retention Scheme
The scheme exists for employers to cover the costs of employees unable to work during the pandemic, you cannot force your employer to apply for the funding. It is your employer’s decision whether to apply to the scheme for funds or not, but an employer who chooses not to claim for eligible employees is unlikely to be able to justify not continuing to pay carers unable to work during the pandemic, and so dismissing carers, forcing them to resign, to take unpaid leave or to use their annual leave for caring responsibilities is likely to be unlawful indirect associative disability discrimination.
My child is not disabled but I am still unable to work because of lack of childcare
It may be indirect sex discrimination to refuse to furlough people unable to work because of childcare responsibilities arising from COVID-19, women are disproportionately primary carers for children and are therefore likely to be disproportionately disadvantaged by an employer not furloughing employees unable to work because of childcare responsibilities.
You can share this fact sheet with your employer and ask to be furloughed on 80% of your salary (up to £2,500 a month) until the Job Retention Scheme ends (currently October). If your employer refuses, you should raise a formal grievance following your employer’s procedure.
If your still employer does not agree to furlough you, you should get legal advice and speak to ACAS to consider if you wish to take a claim to the Employment Tribunal for unlawful indirect discrimination if ACAS Early Conciliation does not help resolve the issue.
Contact ACAS: www.acas.org.uk 0300 123 1100
This fact sheet is a general statement of the law as it is understood at the time of preparation, it is not intended as specific legal advice. It is hoped that employers will respond compassionately and responsibly to the needs of disabled people’s carers at this difficult time.
Please seek individual legal advice on your personal circumstances. ACAS is the statutory body for supporting employees and employers in resolving workplace disputes and is not associated with Just Reasonable Ltd.
Just Reasonable Ltd is a non-profit organisation specialising in disability and employment law.