In this article, our employment law expert, Hannah Thomas, lays out the answers to the most common employer uncertainties.
Published on 2 September, 2021
In preparation for the ending of furlough under the Coronavirus Job Retention Scheme on 30 September 2021 and the implementation of either a full-time return to the workplace or hybrid working, many employers will be turning their attention to unfurloughing their workforce and encouraging or requiring their employees to return to the workplace.
As this process begins, there are a number of factors to be considered from a legal standpoint and our employment lawyers at Markel Law are receiving more questions from employers about how to do things properly. In this article, our employment law expert, Hannah Thomas, lays out the answers to the most common employer uncertainties.
What’s the process for unfurloughing staff?
The starting point is that employees should be available to return to work at any time whilst on furlough. A failure to return to work may be classed as unauthorised absence and subject to the employer’s disciplinary procedure, depending on the circumstances. However, employers should give employees on furlough reasonable notice that they are required to return to work, depending on the needs of the business. Preferably this should be done by telephone in the first instance so that employers can be confident employees are aware of the requirement to return to work and so that any issues or difficulties that employees may anticipate in returning to work can be addressed. Extra consideration should be given to those people at higher risk of more severe health complications should they contract coronavirus. Extra consideration should be given to those people at higher risk of more severe health complications should they contract coronavirus. The Working Safely guidance states that employers should support these workers by discussing with them their individual needs and supporting them in taking any additional precautions in the workplace advised by their GP or clinician.
Notification of the requirement to return to work and that furlough is coming to an end can be confirmed by letter (including by email where employees have email access). For Markel users that have access to the Markel Law Hub, please refer to our template letter ‘Notification of end of Furlough and Request to return to Normal Working Arrangements’.
What’s the process for bringing furloughed employees back to work?
Again, employers should give employees on furlough reasonable notice that they are required to return to work whilst remaining on furlough. This should be confirmed in writing. The return to the workplace will be on employees’ existing pre-furlough terms and conditions, unless a variation to the contract is agreed. Where employers are, for example, looking to reduce contractual hours or pay, or vary the working pattern on the employee’s return to work following employee consultation (either on a temporary or permanent basis), individual employee consent should be obtained and evidenced in writing.
Employers should consult in advance and address any difficulties or concerns the employee may have in returning to the workplace (including anxieties around the return to work). The employer will need to determine in advance which staff are required to return to work according to business needs and ensure they have carried out or updated risk assessments, consulted with staff on health and safety measures and informed staff of any new measures and workplace procedures in place prior to their return to work.
How should employers determine which staff to unfurlough?
The process of selecting which staff to take off furlough is essentially the same as identifying which staff to place on furlough, except in reverse. Provided that the criteria applied for selecting which staff to ask to return to work is not discriminatory, this can be determined in accordance with the employer’s business needs.
Should employers draw up a set of criteria for determining which staff to unfurlough?
Unlike in a redundancy scenario where there are a number of employees at risk of redundancy and the employer needs to determine fairly which employees to provisionally select for redundancy by applying fair and objective selection criteria, there is no legal obligation to do so in relation to furlough. This is provided that any decision in terms of how to select for furlough or to take off furlough is made in accordance with trust and confidence, to reduce the risk of constructive dismissal claims and is non-discriminatory. It may be for example, that as more work becomes available, employers require employees with certain skill sets or in certain work roles to return to work from furlough. You may find it useful to consider our template Furlough Policy which sets out some suggested criteria.
What if an employee refuses to return to work from furlough?
Some employees may be reluctant to return to work for various reasons. For those employees, it should be made clear that, depending on the facts, should they fail to return to work their absence would be unauthorised and could amount to a disciplinary matter in accordance with the employer’s disciplinary procedure.
Please note, however, that if the employee refuses to return to work because they reasonably believe that the threat to their health and safety in contracting coronavirus in the workplace is serious and imminent and that it cannot reasonably be controlled i.e. by the workplace measures that the employer has put in place, then any dismissal would be automatically unfair and there would be a risk of an unfair dismissal award. Where the employee is refusing to return to work for this reason, their concerns should be investigated in the first instance (whether or not the employee has raised the complaint as a formal grievance under the employer’s grievance procedure) and they should be reminded of the health and safety measures the employer has put in place to protect their and others’ health and safety. Where employers have carried out a risk assessment of the workplace to include an assessment of the risks in the workplace due to the coronavirus epidemic and have followed government guidance in doing all they reasonably can to keep their employees safe, this will be the best defence to a complaint of this nature and employees should be required to return to work where business circumstances require.
Where employees are not fit for work (including where they are self-isolating due to coronavirus in accordance with public health advice), they would be entitled to Statutory Sick Pay (SSP), subject to meeting the other eligibility requirements for SSP, where they are not already receiving furloughed wages. Employers can ask for reasonable evidence that the employee fits within one of those categories.
What about employees who are vulnerable and at greater risk of serious illness should they contract coronavirus? Can employers require them to return to work?
They can be asked to return to work provided their workplace is ‘covid-secure’. Where those employees have a disability under the Equality Act 2010, the employer will have certain legal duties towards them, including the duty to put in place any reasonable adjustments required. Employers should also conduct or update existing risk assessments to assess any particular risks to their health, safety and welfare in returning to the workplace due to their vulnerability. Employers may require occupational health or GP advice in relation to the employee to assist in assessing the risks and identifying the measures required, such as an agreed variation to working hours or role. Government guidance recommends that when socialising the clinically extremely vulnerable should continue to consider the risks of close contact with others, and think carefully about taking precautions such as ensuing ventilation and considering whether those they are meeting have been fully vaccinated. Although this advice relates to socialising rather than attending the workplace, clinically extremely vulnerable employees may choose to follow these precautions in the workplace as well. If so, employers should support employees with this where possible. Government guidance for England, which has since been updated to reflect the easing of coronavirus restrictions and recommended measures, previously stated that vulnerable employees should be “offered the option of the safest available on-site roles”. This is no longer government guidance, but it would still be good practice as part of the employer’s general health and safety statutory obligations to prioritise the extremely clinically vulnerable and clinically vulnerable for the safest roles that would permit social distancing where suitable roles are available and where this reflects any medical advice the employee has received and the employee’s own preference.
Pregnant women can, subject to the findings of their risk assessment, continue to travel to workplaces and continue to work. Where the risk assessment concludes that it would not be safe for her to do so and there is no suitable alternative work available for her, the employee will need to be suspended on full pay, possibly for the duration of her pregnancy. Government guidance for pregnant employees states that women over 28 weeks pregnant and/or with underlying health conditions should:
- adhere to any active national guidance on social distancing; and
- be considered for redeployment or opportunities to maximise homeworking wherever possible.
How should employers prepare employees for returning to work?
The Government has issued six separate guides aimed at different work settings in new published guidance on ‘working safely during coronavirus (COVID-19)’ which has applied in England since 19 July 2021.
Although employers will need to tailor their measures to their specific workplace, each guide contains six “priority actions” which businesses should take to protect staff and customers across the various settings and sectors:
- All employers are required to carry out a Covid risk assessment to assess and manage the risks of coronavirus. This should be drawn up in consultation with workers or trade unions. Given it is a legal obligation to consult with employees on matters relating to their health and safety at work, this remains a key requirement.
- There is an emphasis on providing adequate ventilation (either natural or mechanical), including identifying areas of poor ventilation and taking steps to improve them. The guidance suggests that a CO2 monitor could help businesses assess whether a space is poorly ventilated. If employers can’t improve ventilation in poorly ventilated spaces, they should minimise use of these spaces. Businesses are encouraged to make use of outside space where practical.
- Employers should clean areas of high contact more often. They should ask their staff and customers to use hand sanitiser and to clean their hands frequently.
- Employers must not allow workers to attend the workplace if they know they are self-isolating as a result of a positive Covid-19 result, or coronavirus symptoms, or being told to do so by NHS Test and Trace. It is against the law for employers to do so.
- Although there is no longer a legal requirement to collect customer details, employers and businesses are still encouraged to do so in order to support NHS Test and Trace.
- There is an emphasis on communication and training to ensure workers are up to date on what safety measures are being implemented in the workplace.
Under health and safety legislation, employers have a duty to reduce workplace risk to the lowest reasonably practicable level by taking preventative measures. Workplaces should be made “covid secure” by implementing government guidelines and measures in accordance with health and safety legislation, prior to requiring employees to return to the workplace.
Under health and safety legislation, employers are required to conduct a risk assessment to assess risks in the workplace. The risk assessment should be tailored to its workplace and the dangers of coronavirus (this risk assessment needs to be in writing where the employer employs at least 5 employees).
In conducting risk assessments, employers need to be mindful that a particular duty of care under health and safety legislation may be owed to certain workers, such as pregnant workers and new mothers (including the need to suspend on full pay if alternative safe working duties cannot be found for them), for those with underlying health conditions who are clinically extremely vulnerable. Under the Equality Act 2010, employers are required to put in place reasonable adjustments for those with disabilities.
Employers need to implement a safe system of work by putting in place the measures identified by that risk assessment and in consultation with their workforce. Lastly, employers need to do all they reasonably can to ensure that employees follow the safe system of work by both bringing these measures to the employees’ attention and ensuring so far as they reasonably can that employees are carrying them out in practice e.g. through training and refresher updates.
Employers should repeatedly remind employees not to attend work where they have symptoms of coronavirus or are required to self-isolate.
For Markel users that have access to the Markel Law Hub, please refer to our factsheet, ‘Coronavirus Health and Safety Guidance for Employers’ for more detailed guidance. Further health and safety guidance for employers in England can also be found on the hub in our factsheet, ‘The removal of coronavirus restrictions in England: FAQs for employers’.
For more information on what’s been discussed in this article or for other employment law advice, please email Hannah Thomas or call us on 0371 705 4006.