Returning to work after being furloughed – An Employer’s Guide

What can businesses do if a furloughed employee refuses to return to work? How much notice do employers need to give employees for returning? Our experts answer all of your employment law furlough questions here. 

After five months of lockdown due to the Coronavirus pandemic, the UK is beginning to open back up for business. Many are eager to get back to normal ways, while many are feeling anxious about what the “new normal” looks like within their workplace. 

Amongst those who are anxious are numerous business owners who want to hit the ground running once employees come back into work. Employers are faced with numerous questions around the furlough scheme, with some employees potentially refusing to come back into work if they believe it is not safe. 

An issue that employers face is the fact that there is no “one-size-fits-all” rule. Businesses are finding that returning to work in the current climate is not a black and white area. Small, medium and large businesses up and down the country are keen to find answers quickly. 

In this guide, we will detail the rights employers have in cases where a furloughed employee is refusing to return to work and will discuss how you can protect yourself against a detriment/dismissal claim. 

Can a furloughed employee refuse to return to work?

The issue many employers are facing is that of employees refusing to return to work due to concerns it is not yet safe. Under a standard employment contract, an employee is obligated to follow reasonable instructions and, if the appropriate health and safety measures have been put in place, this could amount to unauthorised absence. 

Having said this, employers do need to be extra careful when dealing with matters like this. A key component of employment law is doing what is reasonable, and this will always depend on the facts of the specific case. Employers, therefore, need to consider the consequences of taking disciplinary action for failure to attend work.

An employee can refuse to return to work if they believe it is not safe for them to do so, but you first need to investigate why the employee is refusing to return to work. Do they have a medical condition that puts them more at risk? Did they rely on public transport to commute and are now concerned about traveling? Do they now have extra childcare responsibilities as a result of the pandemic?

While government advice states that it is now safe for employees to return to work, the law is based around the employee’s subjective perception of what safe looks like, meaning the law will often be in favour of the employee, depending on the circumstances. This means that employers could face a number of claims if they choose to take disciplinary action and haven’t followed the correct procedures. These claims could include:

• Disability discrimination

• Constructive dismissal

• Unfair dismissal

In cases like this, simply talking to your employees about their concerns openly often helps both parties come to a solution. Communication will be vitally important in resolving any disputes.

If the matter is not resolved after speaking to your employee and you believe they do not have grounds to refuse to come back into work, our employment law experts can advise whether further action is needed.

Do I need to give employees notice when coming back from furlough?

In short, there is no minimum length of notice required to be given to employees returning to work.

Having said this, when you initially provided your employees with notification that they were being placed on furlough, you should have also included the notice provisions for returning to work. This will differ from company to company, but this could be a week, two weeks or even as short as one day. 

Even if you put in a clause which allows for the immediate recall of employees, you should be mindful of employee relations and give staff a reasonable period of notice of requiring them to return to the workplace.

You should also, in your return to work notice, inform your employees about the provisions you have put in place to safeguard their health and wellbeing, whilst sharing any risk assessment you may have carried out. Communicating all of the work you have done to keep the workplace as safe as possible will go a long way into ensuring a smooth reopening.  

Percy Hughes & Roberts can help with templates for issuing letters to staff when returning from furlough. 

Vulnerable employees and their needs

Each employee will have different needs and concerns. Some employees will be at higher risk if they contract the virus and employers need to be aware of this. Employees with asthma, COPD, heart conditions or conditions which suppress the immune system will need to be treated differently than those who are completely healthy. The latest guidance shows that there are two groups of vulnerable people – those who are clinically extremely vulnerable and those who are clinically vulnerable. If, for example, an employee must use public transport in order to get to work, government guidelines on safe travel state that clinically extremely vulnerable people cannot travel if they cannot shield during their journey. Employers should also note that from 1 August, employees are no longer eligible for statutory sick pay on the basis of being clinically extremely vulnerable, employers should consider if clinically vulnerable employees would qualify under the Coronavirus Job Retention Scheme.   

The latest government guidance in respect of those who are clinically vulnerable (rather than extremely clinically vulnerable), is that they can return to work (if they cannot work from home). 

Steps should also be taken by the employer within the workplace that recognise certain individuals will need more safety measures in place. Government guidance states that employees “owe a duty of care” towards vulnerable employees, which might involve taking extra care with them in the workplace. 

Many of these vulnerable employees may qualify as disabled under the Equality Act. These employees have the right to reasonable adjustments in the workplace, and this could also include them working from home. 

As is the case with much of employment law, a blanket approach towards vulnerable employees will not work and issues like this will to be dealt with on a case-by-case basis. Percy Hughes & Roberts are happy to advise on legal queries relating to potential discrimination issues.

Can I force shielding employees to return to work?

Employees who are clinically extremely vulnerable have been advised throughout lockdown by the government to “shield”. This means they are strongly advised to stay at home as much as possible and keep interactions outside to a minimum. For employers, this has raised a few issues. 

From August 1, however, the government is relaxed shielding guidelines. In essence, this now means that employers can begin asking those who have been shielding to return to work. 

Government guidance makes it clear that working from home is still the preferred option for those who have been shielding, and that this group should only return to their workplace if they cannot work from home and provided that their workplace is “Covid-secure”. 

It is likely employers will run into a number of issues when asking shielding employees to come back into work. Many vulnerable people are extremely nervous about returning to work. Shielded employees are also protected by law if their workplace poses a “serious and imminent threat” to their health. 

There are options for business owners, however. The first of which is to consider a slight change of roles for the employee. Anyone shielding is likely to be disabled within the meaning of the Equality Act 2010. This means, as an employer, you need to make reasonable adjustments to remove any substantial disadvantage posed in the workplace. 

Coming to an agreement with a shielding employee about a slight role change which can mitigate this risk may be a solution. For example, if the employee is public facing, like a receptionist, could they move into an admin role which does not have as much contact with the public?

If the shielding employee cannot work from home and they cannot find a role within the workplace, the job retention scheme may be the best solution for all parties. Employers can still furlough shielded employees provided they have been on furlough for at least three weeks before the end of June. The scheme is due to end on October 31, however.

In addition to this, shielding employees will no longer be eligible for statutory sick pay from August 1, and those on SSP cannot also be placed on furlough. 

Government guidance on shielding employees is ongoing and may change as we learn more about the virus.

Employees who are worried about their commute

There are potential legal risks associated with requiring employees to return to the workplace if they rely solely on public transport. While, the government has confirmed that as of July 17th everyone can use public transport there are, as mentioned above, government guidelines on safe travel for those who are extremely clinically vulnerable.

The advice from the government is that individuals using public transport at off-peak times if they can and walk more of their journey if possible. It would be advisable for employers to accommodate any employee requests to change their working time to facilitate this. 

How Percy Hughes & Roberts can help

Business owners are facing a number of tough questions from employees as the UK begins to start back up. In the first instance, we would advise employers to take a practical approach, communicating to employees as much as possible, and doing everything in their power to ensure safe working practices for their staff. At Percy Hughes & Roberts, we boast years of experience and promise a confidential, friendly, and honest approach to all issues within the employment law field. 

If you have any questions regarding any issue surrounding this area, you can get in touch with us for expert advice.  Get in touch with our Wirral Employment Law Lawyer today by calling 0151 666 9090 or by completing the “Get in touch” form on this site.

Key Links

Who is vulnerable from COVID-19 - https://www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk/whos-at-higher-risk-from-coronavirus/

Government Guidelines on Safe Travel - https://www.gov.uk/guidance/coronavirus-covid-19-safer-travel-guidance-for-passengers

Making your workplace safe during Coronavirus - https://www.gov.uk/guidance/working-safely-during-covid-19