On 20 March 2020 the UK Government announced the Coronavirus Job Retention Scheme as part of a range of Government measures to support businesses and protect economic activity, including jobs and income, during the Covid-19 pandemic, so as to ensure that employers who cannot pay staff wages do not make redundancies.
Professors Bogg and Ford wrote the first blog post for the UK Labour Law Blog, ‘Legislating in Times of Crisis: The Coronavirus Job Retention Scheme’, on 23 March, just after the announcement of the Scheme.
Their article outlined the inadequacy of the current UK labour law framework in holding up under the urgent measures needed within the nationwide COVID-19 emergency and highlighted complex challenges the Scheme would encounter. The post also offered proposals and provisions for amending the Scheme and for emergency legislation, while applauding it as “a radical step which both sides of industry welcome.”
An update was posted on the UK Labour Law Blog on 31 March, ‘Not Legislating in a Crisis? The Coronavirus Job Retention Scheme, Part 2’, following guidance published by the Government on 26 March clarifying the scope, meaning and effect of the Scheme. The article again recognised the urgency with which the Scheme was put together but pointed to serious problems that risked undermining the protections the Scheme aimed to provide.
In particular, the article identified a risk that vulnerable groups such as agency workers and those on zero-hours contracts might fall into a gap between the Job Retention Scheme and the related scheme for the self-employed. It also pointed to issues such as the lack of incentives for employers to re-engage workers already dismissed, and the absence of roles for workers or unions in the employers’ process of deciding who is to be furloughed, “with detrimental consequences for collective solutions to the crisis.”
Both blog posts by Professors Bogg and Ford were cited extensively in a House of Commons Library briefing paper on 2 April covering a number of frequently asked questions on the Scheme. The concerns they raised were noted in several answers, including around the Scheme’s covering of workers already made redundant.
The paper also cited the blog posts in relation to several questions around furloughing workers, such as whether employers have an automatic right to furlough workers; whether agency workers and zero-hours workers can be furloughed; how employers should select which workers to furlough; and if being furloughed affect continuity of employment - noting that “Alan Bogg and Michael Ford QC have argued that UK employment law is not suited to contractual variations in times of crises”
Read the full briefing paper on the House of Commons Library website.