Unfurloughing the furloughed: how to bring staff back

May 5, 2020 | Information

After being locked down for at least six weeks, most people are ready to return to “normality” as quickly as possible. Although things will not return to normal for a very long time yet, the journey towards normality involves opening up the economy and returning to work.

In advance of the anticipated government announcement this weekend regarding the plans to ease lockdown restrictions, the BBC reported that it had seen a report setting out the various measures the government is planning to take in the coming weeks.  This has caused backlash from the unions who say they can’t support the advice in its current form.

We take a look at the sorts of measures that employers can adopt to ensure safe working and the issues they may face from staff who are reluctant to return.  We also take a look at the options open to businesses who may struggle to reopen after the lockdown ends.

Job Retention Scheme

The Coronavirus Job Retention Scheme (CJRS) has already been extended to the end of June, and may well be extended again, possibly with some adaptation to allow staff to return to work on reduced hours.  This flexibility would allow a more gradual return to work and support those businesses who need to operate with a reduced workforce.   It is likely that many employers will still need to keep staff on furlough for as long as the CJRS permits; however, some will need to ask all or part of their workforce to return once restrictions start to be lifted.

What will the workplace look like?

The biggest concern for employers who are permitted to reopen is the health and safety of their employees, and the first thing to do is a risk assessment.  The risk assessment should detail in full the ways that the employer can maintain a safe working environment for staff. The suggested measures the government has proposed include operating at half capacity, closure of staff canteens, staggering shift patterns and start times and social distancing.  The measures implemented will differ depending upon each business sector and employers will also want to continue with measures introduced during lockdown such as homeworking and video calling wherever possible.

It is also possible that employers will need to introduce PPE for their staff so that they can carry out their jobs safely, although this may present a problem if supplies are low.

Employers should remain up to date with the government guidance about what to do if an employee shows symptoms in the workplace.  An employer’s duty is to protect the health and safety of other employees and so employers may need to keep employees who have been exposed to Covid-19 away from the workplace. Be mindful about data protection when notifying staff about colleagues who may have contracted the virus.

Although not currently recommended by the government, if an employer wishes to conduct temperature checks, they will need the employees’ consent to avoid any claims of breach of contract or assault.

How do I choose which staff to bring back?

The furlough agreement that employees may have signed before going off on furlough should set out the events that will trigger their return to work and the notice they should receive.

It may be relatively easy to decide who to bring back from furlough, as it may be very clear which employees have the relevant skills needed to kickstart the business.  Where this is not so clear cut, employers can ask for volunteers to return and/or undertake a rudimentary selection process (as they may have done when choosing who to furlough in the first instance). As long as an employer does not use discriminatory criteria, any fair selection decision is unlikely to lead to a claim.

What if the employee is reluctant to return?

There may be valid reasons as to why an employee may not wish to return to the workplace when asked, such as health or childcare reasons.  There may of course be a certain amount of reluctance because they are comfortable receiving 80% of pay for doing nothing.  The key is to determine whether there is a genuine reason.

Health and safety concerns

Where an employee is reluctant to return due to a concern that the workplace is unsafe and they may catch the virus, an employer must first ensure that they have all the relevant safety measures in place and listen to the employee’s concerns, hopefully putting their mind at ease. If the employee insists that they are still too frightened to return, employers can look at whether homeworking is possible or whether they could take a period of annual leave or unpaid leave instead. Due to the risk of an automatic unfair dismissal claim arising out of this situation, employers should be wary about dismissing an employee who has valid concerns and take advice before they do.

Be mindful that the anxiety some employees will have about returning to the workplace could be so severe that they are regarded as being ill and on sick leave.  Their condition may also be covered by the Equality Act 2010 as a disability, which means medical advice may need to be obtained and adjustments made to assist the employee in continuing to work.

Childcare concerns

With schools not yet open, there is going to be an inevitable conflict for those employees who have caring responsibilities, as their ability to work will be hampered. Again, employers should listen to any valid concerns and either continue to furlough them or agree homeworking where possible.  They can also invite employees to take annual leave or unpaid leave until such time as children have returned to school.

Shielding employees

There may be some employees who should not return to work yet, such as those who are shielding.  Shielding employees are deemed incapable for work and thus entitled to SSP. They are also entitled to be furloughed, although not at the same time as being on sick leave. (The interplay between sickness and furlough is not entirely clear due to a conflict between the Treasury direction and government guidance and so advice should be sought if this is an issue.)

Permitting a shielding employee or an employee who was advised to socially distance due to their age, pregnancy or underlying health condition to return to work is risky and may amount to a breach of an employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence.  If they contract the virus whilst at work, the employer may be liable for personal injury.

Where an employee refuses to return to work because they live with a close relative who is shielding, employers should consider homeworking or redeployment into a role that is suitable for homeworking.  If this is not possible then offer a period of unpaid leave in preference to disciplinary action.  These employees are not forbidden from attending work, but employers should be sensitive to any concerns they have about the risk to the person who is shielding.

Reluctant for no reason

And then there are the employees who are just too comfortable sitting at home receiving 80% of pay.  In the absence of a valid reason for not returning, employees who fall into this category can be potentially disciplined for unauthorised absence from work and failure to follow a reasonable management instruction and have their pay stopped as they are not willing to attend work.  It would be wise to take advice before dismissing any employee in this situation in order to minimise the risk of an automatic unfair dismissal claim.

What if reopening is not an option?

There will be some businesses who just won’t be able to weather the storm, even with the help of the CJRS, and will not reopen after restrictions are lifted.  These businesses will be able to make their staff redundant by following the normal consultation rules. If the employees are given notice whilst still on furlough, employers will be able to take advantage of the CJRS towards the cost of the notice pay.

 

The above content represents our views and does not constitute legal advice.  Should you require specific legal advice, please contact claire@clrlaw.co.uk