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Markel Insurances

09 Apr 2021

Employers guide: Ending furlough and requiring employees to return to work

As the vaccine programme accelerates and lockdown gradually starts to lift, many employers will be turning their attention to unfurloughing their workforce and/or encouraging their employees to return to the workplace.

As this process beings, there is a number of things to be considered from a legal standpoint and our employment lawyers at Markel Law are increasing 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 first point to bear in mind is that employees should be available to return to work at any time whilst on furlough, meaning 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.  Employers should consult with their employees to determine who can come into the workplace safely taking account of a person’s journey, caring responsibilities, protected characteristics, and other individual circumstances.

Extra consideration should be given to those people at higher risk of more severe health complications should they contract coronavirus.  Employees who were previously required to shield due to being extremely clinically vulnerable should continue to work from home in preference to attending the workplace where possible.  If they cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines.  Where they cannot safely return to the workplace and where homeworking is not possible, employers may choose to keep those employees on furlough. 

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 UK 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?

To support the transition back to work, employees are permitted to work for any amount of time and any shift pattern whilst on furlough under the terms of the Coronavirus Job Retention Scheme (CJRS). The employer is able to claim the CJRS grant for their wages in respect of their normal hours not worked.  Employers cannot claim via the CJRS for employees’ wages for the periods when they are carrying out work. 

Again, employers should give employees on furlough reasonable notice that they are required to return to work whilst remaining on furlough and details of their new working pattern and this should be confirmed in writing. 

Employers may be required to agree the new working pattern with the employee. For example, where they cannot rely on an existing contractual provision (such as a contractual working hours flexibility clause, bearing in mind that flexibility as to varying hours of work will be construed narrowly by a tribunal), or where employees have fixed hours of work under their existing contracts of employment.  Government guidance states that to be eligible for the CJRS grant, employers must agree with their employee any new flexible furloughing arrangement and confirm that agreement in writing.

In either case, the employer should consult in advance and address any difficulties or concerns the employee may have in returning to work on varied hours or shift patterns (such as childcare, or concerns regarding the requirement to use public transport or anxieties around the return to work where the employee is clinically vulnerable, in particular).  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 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.

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. 

What if an employee refuses to return to work from furlough?

Some employees may be reluctant to return to work, particularly where the CJRS remains in place and they would otherwise be entitled to furloughed wages. 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 has 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’.  Employees that are ‘extremely clinically vulnerable’ can be required to return to work in England and Wales from April 2021 on the basis that they are no longer required to shield in accordance with public health advice from that date, although they should continue to work from home where possible.

Where they 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.

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.   

How should employers prepare employees for returning to work?

The current government guidance continues to be that employees should work from home where reasonable to do so.  The government stated in their ‘COVID-19 Response - Spring 2021’ guidance, published on 22 February 2021, that they will  complete a review of social distancing measures and other long-term measures that have been put in place to limit coronavirus transmission prior to 21 June 2021.

The results of the review will help inform decisions on the timing and circumstances under which rules on 1m+, face masks and other measures may be lifted. The review will also inform guidance on working from home, but that people should continue to work from home where they can until this review is complete. 

Employees may attend their workplace where homeworking is not possible, or for welfare reasons and where it is safe for them to do so.

The Government has issued fourteen separate guides aimed at specific sectors or workplaces in England that are permitted to open.

These are as follows: 

1.         Construction and Other Outdoor Work

2.         Factories, plants and warehouses

3.         Labs and Research Facilities

4.         Offices and Contact Centres

5.         Other People’s Homes

6.         Restaurants, pubs, bars and takeaway services

7.         Shops and branches - This guidance has been updated to provide guidance on health and safety measures for non-essential retail categories ahead of their planned opening from 12 April 2021.

8.         Vehicles

9.         Close contact services (including hairdressers and barbers, spas, nail bars, beauty salons,  tanning salons and massage, tattoo and piercing parlours)

10.       The Visitor Economy (including hotels and guest accommodation, indoor and outdoor attractions and business events and consumer shows)

11.       Heritage locations

12.       Hotels and other guest accommodation

13.       Performing Arts

14.       Providers of grassroots sport and gym/leisure facilities

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 five 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 and employees who are over 70. 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 and to follow social distancing measures (including outside work). This is particularly the case where they work in a higher risk environment with vulnerable people. 

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.

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