Caring responsibilities, furlough and discrimination: Your rights explained

The rules concerning furlough, schools and workplace restrictions continue to change frequently, and it can be difficult for both employers and employees to keep up. However, if you are affected by furlough or there has been a change in your caring responsibilities, it is essential that you understand your rights under UK employment law.

Government guidance on the furlough scheme, issued in November 2020, confirmed that furlough is available to employees who must stay home because they have caring responsibilities (for example, to take care of children who are not in school because of the lock down) as a result of coronavirus. In this article, we look at discrimination in making decisions about furlough and other matters.

My employer has refused to furlough me, could this amount to discrimination?

When making decisions about furlough, including who furlough should be offered to , discrimination under employment laws still apply. Under the Equality Act 2010, if your employer will not put you on furlough for one of the following reasons, it could amount to discrimination. 

• Pregnancy
• Maternity
• A disability or caring for a person with a disability
• Your sex
• Your age
• Because you work part-time
• Because you are on a fixed-term contract

As a result of lockdown restrictions, I have care commitments. Can I ask to be placed on furlough?

So long as your care commitments have arisen because of coronavirus, you can ask your employer to place you on furlough. This could be because of a person’s carer not being able to look after them or the closure of schools, or because you have to care for a vulnerable person at home.

If your employer refuses to put you on furlough, you may be able to raise a grievance or enter into further discussions about how furlough might work for you. Many employers are unaware that you can be placed on furlough at any time, how flexible furlough works, and your rights as an employee at this time.

My employer wants me to work from home, but I have caring responsibilities. Can I be furloughed?

Your employer may also prefer that you work from home rather than placing you on furlough, and you can discuss this option with them. You may not be able to work from home if you are caring for someone or because your child has specific care needs. In these circumstances, you may ask to be furloughed. As government guidance in this area has changed, you may wish to raise your caring difficulties with your employer to make sure they are aware.

Am I entitled to furlough?

One of the biggest challenges for employees is that furlough is not an entitlement, and your employer does not have to place you on furlough. It could be argued that a refusal to place employees on furlough could amount to indirect sex discrimination on the grounds of sex pursuant to section 19 of the Equality Act 2010, as it will have a disproportionate impact on women. However, this is yet to be tested in the courts, and you should seek advice on the best course of action for your circumstances.