25/05/2021

The furlough scheme has been a lifeline for businesses who have faced severe disruption due to the Covid 19 pandemic.

As life gradually returns to normal many employers have been left grappling with issues triggered by the return to work of furloughed employees.

To help you navigate the furlough system, we thought it would be helpful to provide answers to some of the questions that we are being asked by employers.

Is there a notice period to bring staff back from furlough?

There is no requirement to give specific or minimum notice to furloughed employees prior to their return to work. They should be available to return at any time, however where possible, it is better to give reasonable notice to help your employee make practical preparations for their return, for example, arranging childcare.

How should I inform employees that they need to return to work?

You should confirm in writing – a letter or email – that their period of furlough is coming to an end and specify when they will be required to return to work.

If I only need some employees to return, how should I choose which ones come back and which remain on furlough?

You should base your decision on business need, using criteria that is fair and not discriminatory against anyone with a protected characteristic as outlined in the Equality Act 2010.

For example, you might require staff with particular skills, or those who work in specific areas of the business.

Can staff refuse to return to work?

No, there is no right to remain on furlough. Refusing to return to work equates to refusing to fulfil their employment contract, which could provide grounds for disciplinary action. If an employee does not want to return, they should be asked if they are resigning and give their notice.

Can an employee previously designated clinically extremely vulnerable refuse to return to work?

No, from 1 April 2021 clinically extremely vulnerable people in England were advised that they no longer needed to shield.

Employers are required by law to take steps to make workplaces Covid secure and this should be discussed with employees but, providing all reasonable steps have been taken to ensure the safety of staff and they cannot do their job from home, there are no grounds for people previously designated as clinically extremely vulnerable to refuse to return to work.

Can employees make demands about their return to the workplace?

No. If they have suggestions about how their return from furlough might work, a constructive discussion should be encouraged, but ultimately you are entitled to expect them to return to work on the same basis as before and to base any required changes on business need.

Can employees refuse to come back to work full time?

As an employer, you have the flexibility to bring furloughed employees back part-time if that meets the needs of your business.

However, if you require staff to return full-time, they cannot refuse to do this. If they do, they will be in breach of their employment contract and risk disciplinary action.

What happens if an employee has taken another job while on furlough and can’t return when required?

Their employment contract with you states what is expected of them and the hours they should work. They are obliged to honour this and return as and when you require them. Failure to do this could be breach of their employment contract and risk disciplinary action.

Your employment contract may also state that they cannot work for someone else – at all or not without your consent. If this is the case, they could be in breach of their contract simply by having the second job and you should discuss this with them. This situation could also lead to disciplinary action.

Can a sick employee request to remain on furlough as an alternative to Statutory Sick Pay?

The guidance states that the furlough scheme ‘is not intended for short-term absences from work due to sickness’, however, if there is a business reason for that person to remain furloughed, they can remain furloughed. If they are furloughed they may not claim Statutory Sick Pay. Where the business no longer needs furlough, the employee must either return to work or if they are ill, they will commence ordinary sick leave and be paid as per their contract which is most likely statutory sick pay.

What if an employee is self-isolating?

If during furlough, an employee has coronavirus symptoms or is self-isolating due to someone else in the household displaying symptoms, they must stay at home, not come into work and cannot be dismissed.

It is the company’s decision whether to keep the person on furlough during the isolation period rather than moving them to statutory sick pay but if a person is genuinely ill and unable to work, employers should consider whether furlough remains the appropriate pay. You won’t know how long the person may take to recover.

Can an employer change the working hours, days or pay of furloughed staff who return to work?

You can only do this if there is a clear flexibility clause in your employment contract or the employee (or recognised trade union) agrees to the changes. We would suggest keeping staff updated on any changes to the business and discuss with them the true impact of Covid. This period is going to be a time for employers and employees to work as a team to help the business survive and recover from this very difficult time.

 

Returning to work could be stressful and daunting for furloughed employees who may have been away from the workplace for some time.

For employers, the key is to open lines of communication with the employee, so that you can hear their concerns and consider a way forward. You should be completely fair and consistent in the way that you handle the return to work of furloughed employees and make sure the decisions that you make are driven by the requirements of your business first and foremost.

For advice about any employment law matter, email enquiry@beswicks.com or phone 01782 20500.

Alternatively, ask us about our Beswicks HR service, which provides unlimited access to an experienced employment lawyer whenever you need help and support from as little as £125+vat/month.