Tuesday 28 July 2020

There has been a lack of clarity over the extent to which employees on furlough leave could assist in the investigation of accidents and claims, or be interviewed by claims inspectors or solicitors to prepare witness evidence.

Until 1 July 2020, the Coronavirus Job Retention Scheme (CJRS) - through which many businesses and organisations have furloughed employees - prohibited employees on furlough leave from undertaking any work on behalf of their employers.

Concerns over whether involvement of an employee in accident investigation prior to 1 July may be in breach of the CJRS rules has presented insurers and their insureds with difficulty in investigating claims through lockdown.

The question of whether an employee on furlough leave may attend Court to give evidence was the subject of two contrasting County Court decisions:

In the County Court in Manchester, Her Honour Judge Evans vacated a trial as one of the witnesses (who was giving evidence on behalf of his employer) was on furlough leave: see Wapnick v HSS.

In contrast, in the County Court in Nottingham, His Honour Judge Godsmark indicated that attending Court to give evidence is not prohibited by the furlough scheme and that the furlough leave of a witness is not a reason to vacate a trial: see Fottes v Bourne Leisure.

Changes to the CJRS now enable employers to bring back employees to work on a flexible, part time basis, for any amount of time or shift pattern, while still being able to claim the CJRS grant for their normal hours not worked. Employers are required to meet certain eligibility requirements to take advantage of this new flexibility.

From 1 July the new flexible rules of the CJRS enable employers to bring employees back to work to assist in accident investigations and claims or give evidence at trial.

Employers with concerns about the appropriateness of interviewing a furloughed employee, or calling an employee to give evidence at trial, will welcome the new flexibility within the CJRS.

David Williams, Partner (dwilliams@dacbeachcroft.com) and Zoe Thomas, Legal Director, Leeds Office (zthomas@dacbeachcroft.com), DAC Beachcroft.

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