As the measures the government took to assist businesses at the height of the coronavirus crisis are slowly being phased out and furloughed employees are being brought back into the workplace, it has been discovered that approximately six million of the 9.4 million furloughed staff carried on working illegally.  Notwithstanding the fact that businesses were clearly warned that they couldn't claim for working employees as it would be against the law, roughly two million of the working furloughed staff were explicitly compelled to work by their employers.  Other furloughed staff felt it was acceptable to complete urgent tasks from home even though they were aware that it was not allowed.

Many of the employees that were illegally forced to continue working have turned whistleblower and there have been reports of furloughed employees being placed in an impossible situation by their employers of having to choose between committing a criminal act, or not having a job.  Workers on a building site were warned that they must continue working or lose their jobs, in another instance, carers told that the vulnerable individuals they look after would not receive any assistance unless they worked whilst on furlough.  The industry sector most at fault is IT with an estimated 44% of staff continuing to work during furlough.  Businesses that have taken advantage of the scheme and then have flouted the law have 90 days to pay back the money paid to staff under the furlough scheme; alternatively, if found out face paying back the money paid out by the government plus an identical amount as a fine. 

Some employers believed, erroneously, that they could not be caught and may be dismayed to learn that the HRMC has received 8,000 tip-offs to its fraud hotline that they are currently being investigating in-depth.  They naively underestimated their workers' strength of feeling when being manipulated to act illegally and also did not recognise that the HRMC would have the capacity to identify fraud such as over-claiming as well as claims that do not match the existing payroll data it already holds.  

In July, HMRC announced the first Coronavirus Job Retention Scheme (CJRS) fraud arrest of a Solihull man and emphasised that it "will not hesitate to act on reports of abuse of the scheme".  Furthermore, from 1 July 2020, flexible furlough was introduced and a furloughed employee or worker could agree with their employer to be put on 'flexible furlough,' meaning that the staff member can work some of their usual hours and remain furloughed for the hours they do not work.

Daniel Theron, a partner, pointed out "some business owners would do well to realise that their staff may not share their laxity and are less keen to break the law.  Whistleblowing has accelerated during lockdown." He further remarked, "Organisations that take a high moral stance may lose the quick win of corner-cutting gained by dubious practice but gain far more by having an ethical reputation which encourages confidence in their customers."  Toyota has a whistleblower policy that actively encourages staff to confidentially report any serious concerns regarding misconduct or wrong doing within the company.  The management of any large organisation cannot see everything within an organisation and the policy goes some way to reassure customers that Toyota has taken all steps to avoid wrongdoing by their staff or others that may have an impact on the business.  Any business that pays back the money incorrectly claimed under the CJRS for staff who continued to work may avoid the worst penalty.

For more information on employment law relating to the CJRS please click here

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