The advice to build goodwill comes from employment lawyers Recruiter has spoken to, who confirm that commission payments sales staff are accustomed to earning are not included in the payments for furloughed workers.

Kevin Charles, consulting barrister at Crossland Employment Solicitors, told Recruiter the lack of commission payments will have a big impact on consultants.

“The government’s Coronavirus Job Retention Scheme involves the government funding 80% of ‘wages’, which excludes commission and bonus, up to a capped amount of £2.5k per month. As such, this will undoubtedly have a significant impact on recruitment consultants used to earning commission, and they are likely to see a big drop in their earnings.” 

Melanie Stancliffe, partner at Cripps Pemberton Greenish, told Recruiter for those paid commission to top up a basic salary, the furlough scheme offers cold comfort.

“The reduction in their customary income is bad news and may even leave those with very low basics having to seek universal credit.  

“For agency bosses choosing who to furlough, it would be better all round if the recruitment consultants on a higher basic are furloughed – the agency saves their costs and the consultants will receive a higher payment. There are signs that employees on furlough can work elsewhere or set up their own business, so they would have the chance to gain income – there is increasing need for NHS and delivery staff if they have transferable skills.”

Stephen Jennings, partner at Tozers Solicitors, told Recruiter unless employers choose to top up the sums paid to recruitment consultants, which some employers are doing, they will be asking their staff to agree to a sweeping pay cut. 

“This risks staff refusing to agree to furlough (most employment contracts will not give employers the right to put an employee on furlough against their wishes) or staff going on furlough but jumping ship for another more generous employer or setting up on their own (taking their contacts with them). The risk of the latter may be overblown at the moment as most businesses are not hiring and it is a tough market to start a business, but this may become more of an issue once the recovery starts.”

Dr Sybille Steiner, partner at Irwin Mitchell, told Recruiter: “Agencies can top up furlough wages, so can decide to pay commission in addition. Employees are still employed by the recruitment agency so must comply with their obligations not to compete during and, if enforceable post-termination restrictions have been agreed, after the contract has ended.”

However, Jacqueline McDermott, partner at Keystone Law, questions whether recruiters will be able to afford top up payments: “It is unlikely that many employers would be able to afford this. 

“Furloughed workers cannot carry out any work for the employer while on furlough leave. However, this does not mean that they cannot work for another employer.

“Employees have to agree to be put on furlough status in the first place.”

Jahad Rahman, partner at Rahman Lowe Solicitors, told Recruiter agencies could impose restrictions on furloughed employees from working elsewhere – such as for a competitor and/or setting up in competition.

“The contract of employment continues and if the contract contains restrictive covenants, then that minimise the risk of competitive activity during the furlough period.”

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