Caring responsibilities, furlough and discrimination: your rights explained

The rules concerning furlough, schools and workplace restrictions continue to change frequently, and it can be difficult for both employers and employees to keep up. However, if you are affected by furlough or there has been a change in your caring responsibilities, it is essential that you understand your rights under UK employment law.

Government guidance on the furlough scheme, issued in November, confirmed that furlough is available to employees who must stay home because they have caring responsibilities as a result of coronavirus. In this article, we look at discrimination in making decisions about furlough and other matters.

My employer has refused to furlough me, could this amount to discrimination?

When making decisions about furlough, including who furlough should be offered to, discrimination under employment laws still apply. Under the Equality Act 2010, if your employer will not put you on furlough for one of the following reasons, it could amount to discrimination.

  • Pregnancy
  • Maternity
  • A disability or caring for a person with a disability
  • Your sex
  • Your age
  • Because you work part-time
  • Because you are on a fixed-term contract

As a result of lockdown restrictions, I have care commitments. Can I ask to be placed on furlough?

So long as your care commitments have arisen because of coronavirus, you can ask your employer to place you on furlough. This could be because of a person’s carer not being able to look after them or because you have to care for a vulnerable person at home.

If your employer refuses to put you on furlough, you may be able to raise a grievance or enter into further discussions about how furlough might work for you. Many employers are unaware that you can be placed on furlough at any time, how flexible furlough works, and your rights as an employee at this time.

My employer wants me to work from home, but I have caring responsibilities. Can I be furloughed?

Your employer may also prefer that you work from home rather than placing you on furlough, and you can discuss this option with them. You may not be able to work from home if you are caring for someone or because your child has specific care needs. In these circumstances, you may ask to be furloughed. As government guidance in this area has changed, you may wish to raise your caring difficulties with your employer to make sure they are aware.

Am I entitled to furlough?

One of the biggest challenges for employees is that furlough is not an entitlement, and your employer does not have to place you on furlough. It could be argued that a refusal to place employees on furlough could amount to indirect sex discrimination under section 19 of the Equality Act 2010, as it will have a disproportionate impact on women. However, this is yet to be tested in the courts, and you should seek advice on the best course of action for your circumstances.

To discuss this, or any other employment related matter directly with an expert, email Jane Crosby at info@hartbrown.co.uk or call 01483 887766.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

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Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.

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Hart Brown Solicitors is the trading name of Hart Brown LLP registered in England and Wales No. OC 425835 whose registered office is Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX and is authorised and regulated by the Solicitors Regulation Authority (SRA) No. 658593. Members: N Maud, T Pearce, R Campbell, L Harrhy and J Lamont, Partners: D Beswick, J Crosby, J Jupp, T Mandelli, V McMurtrie, E Moore, S Powell, G Sanders and L Stolworthy.

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