11 June 2020

Can you pick fruit whilst on furlough?


Hugh More
Partner | UK

In April, Environment Secretary George Eustice said that, in some cases, furloughed employees would be encouraged to take a second job picking fruit to help the UK harvest. The migrant workforce which is usually crucial in this work is at about a third of its usual level as a result of the COVID-19 pandemic.

Furlough is a new concept in UK employment law, and is distinct from redundancy, lay off and termination. Whilst on furlough an employee is still employed by their employer. Not all furloughed employees will therefore be able to take on a fruit picking role during the pandemic – only those (relatively few) employees who are able to take on a second job under the terms of their employment contract will be able to do so. If this is not contractually allowed for, the employee would be in breach of contract if they took a second job without their employer’s consent. Of course, if a furloughed employee is a part time worker, they will, as usual, be able to take on a second role on the days they are not employed by their existing employer.

If allowed for under their employment contract, a furloughed employee taking on a second job fruit picking will not affect the grant their employer can claim under the Coronavirus Job Retention Scheme. Equally, however, it would not entitle their employer to withhold part of that grant for itself, nor to withhold any additional salary it had agreed to pay (for example, to ‘top up’ the furlough pay to full salary), unless the furlough agreement provided for this.

Importantly, a furloughed employee may not undertake any work for their existing employer, or for any linked or associated company. Accordingly, while clearly taking additional seasonal work elsewhere may be beneficial to the employee and permitting it may generate some goodwill, employers may conclude that there is little other direct benefit for them.

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