Last reviewed 14 August 2020
Can you ask your employees to undergo training while they are on furlough? Robert Spicer explains.
The Covid-19 pandemic continues to cause significant uncertainty in relation to job security and health and safety. The effect of the pandemic on employment in general, and health and safety in particular, is complex and rapidly changing. One area raising queries is the extent to which health and safety training, which is required by legislation, may be undertaken during furlough without breaching the relevant rules or guidance.
Furlough (temporary leave) is available under the Government’s Coronavirus Job Retention Scheme. Furlough is where an employee or worker agrees in writing with their employer to stop work temporarily but remains employed at 80% of their usual salary. The terms and conditions of a worker’s contract of employment continue to apply during furlough.
Since 1 July 2020, a furloughed employee or worker can agree with their employer to be put on “flexible furlough”. This means they can work some of their usual hours and stay on furlough for the hours they do not work.
Training on furlough
The general principle is that workers cannot work for their employer while on furlough but they are allowed to carry out training.
Government guidance states:
“Time spent training whilst furloughed is treated as working time for the purposes of the minimum wage calculations and must be paid at the appropriate minimum wage rate. Your employer will need to ensure that the wages and furlough payment provide sufficient monies to cover all working time including these training hours. Where the pay is less than the appropriate minimum wage entitlement, your employer will need to pay additional amounts to ensure at least the appropriate minimum wage is paid for both working time and 100% of the training time whilst furloughed.”
Furloughed employees can engage in training during hours which the employee is recorded as being on furlough, as long as in undertaking the training the employee does not provide services to, or generate revenue for, their organisation or a linked or associated organisation.
A furloughed employee can undertake study and training, eg to maintain their skill set or upskill themselves while furloughed, as long as the purpose of this is to improve the employee’s effectiveness in their employer’s business or the performance of their employer’s business.
“Training” is not defined in the Government regulations or guidance.
The HSE defines training as helping people to learn how to do something, telling people what they should or should not do, or simply giving them information. Training isn’t just about formal classroom classes.
Legislation regarding health and safety training
Statutory provisions dealing with health and safety training include the following.
Section 2 of the Health and Safety at Work, etc Act 1974 (HSWA) states the general duty of employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. This duty includes, in subsection 2(c), the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety of employees.
Regulation 13 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) deals with capability and training. It states, in summary, that employers must have regard to the capability of an employee to carry out an intended task as regards health and safety, and must provide safety training:
upon recruitment, ie health and safety induction training
when an employee changes their job or responsibilities within the employing organisation
when new equipment or technology is introduced or when existing equipment is significantly modified
when the system of work changes.
MHSWR also states that refresher training must be given where appropriate and must be modified to take account of changes to circumstances. Training should be carried out during normal working hours. If it is necessary to train outside normal hours; this must be regarded as an extension to the employee’s time at work.
The Safety Representatives and Safety Committees Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996 state that representatives appointed under these Regulations are entitled to time off with pay for training in their duties.
Other regulations deal with training requirements in specific areas, eg asbestos, first aid and diving.
HSE guidance states that young workers are particularly vulnerable to accidents. Employers should therefore pay particular attention to their needs and training for young workers should be a priority.
Workers should be encouraged to carry out training while they are on furlough. However, any study or training undertaken must not provide services to, contribute to the business activities of or generate revenue for or on behalf of the employer who has placed them on furlough (or any linked or associated organisation of the employer).