Whether it’s opening the post, checking emails or even volunteering to do the gardening at work, if you’ve allowed employees to do any work for you whilst they’ve been furloughed (even at their request), you’ll have fallen foul of the Job Retention Scheme.
If you’re considering restructuring or going through any other employment process which may leave an employee disgruntled, they may try and protect their employment position by suggesting you’ve claimed furlough inappropriately. We’ve seen that there have been 8000 calls already to the HMRC’s fraud hotline.
Any disclosures an employee makes (whether internally or externally e.g. to HMRC) about suspected furlough fraud or uncorrected errors are likely to be amount to “protected disclosures” or “whistleblowing”. This means unlimited compensation at tribunal if the employee can show that they were dismissed or suffered a detriment as a result of making the disclosure.
If you know or suspect that you’ve acted inappropriately in respect of furlough or are the subject of a whistleblowing disclosure, here are a few things to consider:
Act first – if you think you’ve made an inappropriate furlough claim, let HMRC know immediately. See our previous update for further details. If an employee has already blown the whistle, self-reporting won’t remove the employee’s whistleblower protection but your actions show you’re not trying to cover up wrongdoing (making any argument that the employee suffered a detriment as a result of their disclosure less plausible).
Signpost – ensure employees are clear about how they should raise their concerns and to whom – a whistleblowing policy should set out that the employee is to come to you first giving you an opportunity to understand their concerns and address them. We’ve got this covered in our “Safe return to work policy” or “whistleblowing policy” – for details of how to access click here.
Deal with rule breakers – if an employee has chosen to work despite your requests for them not to do so, consider taking disciplinary action against them and/or documenting your concerns and requests for them to stop. Failure to do so could mean they later suggest that you agreed to them behaving in breach of the Job Retention Scheme or that you even encouraged them to do so.
Evidence your thought process – if you’re following a formal process (e.g. redundancy) just because an employee has blown the whistle doesn’t mean you can’t continue. Clearly you’ll need to investigate their concerns but you can usually do so alongside the formal process – just keep a careful note of your decisions and rationale.
Click here if you need advice from one of our expert lawyers.