The Government have now set out their plans to ease the lockdown, one of which was to actively encourage the nation to return to work where it is safe to do so – if the work cannot be done from home. Many UK employers will already have been considering strategies for re-opening and recalling employees from furlough.
In this article, we will be touching on common issues and questions you have regarding recalling employees from furlough and managing your workforce during this uncertain period. In coming days, we will also be publishing a series of more detailed guidance on the below matters, and also the longer term challenges organisations will be facing.
FAQ 1. How do I go about recalling employees from furlough/ lay off/ unpaid leave?
There is no specific process to be followed in asking employees to return – it is simply a matter of contacting your workforce and providing reasonable notice of the of the date that they will be expected to return to work.
There is no minimum period of notice required, however, we would recommend providing at least two days’ notice, and taking into account employees individual circumstances. The notice should be provided in writing, and we would also recommend including information on how you intend to ensure their safety, and follow social distancing guidelines in the workplace – this may go some way to prevent protests from employees who don’t want to risk their health by returning to work.
If you are not recalling employees from furlough for another few weeks, we would recommend providing an update to employees, informing them of your plans, and reassuring them of the measures you will be taking to protect their health and safety once they do return to work.
FAQ 2. What if an employee refuses to return to work?
Employers are likely to face a variety of reasons for employees refusing to work, e.g. due to childcare reasons, because they have been instructed to shield, or because they do not feel that sufficient measures have been taken to ensure their safety in the workplace. Our recommendation would be to discuss the reason for the refusal with the employee individually and address any concerns they may have.
Employers should be aware that, under s44 Employment Rights Act, employees have the right to refuse to work if they have a reasonable belief that they are in serious and imminent danger, and are protected if they suffer a detriment because of such a refusal. We would therefore recommend exercising caution in taking disciplinary action against employees who refuse to return to work due to the perceived risk and seek our advice. We will be providing more detailed guidance on how to safely deal with these situations shortly.
FAQ 3. Can we instruct employees who are shielding to return to work?
The simple answer to this is NO. Public Health England have advised that employees who are categorised as ‘extremely vulnerable’ should shield until at least the end of June, and these employees should remain on furlough. However, we would recommend requesting evidence from these employees that they are required to shield to and keeping a record of this in case of any future HMRC audit.
Alternatively, if shielding employees are not eligible for furlough, they will be entitled to receive SSP.
FAQ 4. Can we instruct employees who live with shielding family members to return to work?
The current Government guidance states that household members do not need to shield but should do what they can to support the shielding family member and should follow social distancing guidelines carefully.
If you have employees who are worried about returning to work and potentially putting family members at risk, we recommend having an open discussion with the employee, and reassuring them of the social distancing measures in place. It is presently unclear when an employee in this situation would continue to be eligible for furlough unless they also having caring responsibilities for the vulnerable family member.
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FAQ 5. What are my options if any employee cannot return to work due to childcare issues?
Given that schools in England will not be returning until at least June, and schools will only be opening for transitional year groups in any case, a good proportion of the workforce will find it difficult to return to work without childcare.
Employees who cannot work for childcare reasons will continue to be eligible for furlough. However, depending on how long the furlough scheme continues for, it may be necessary to agree a period of unpaid leave or allow employees to take annual leave to remain at home with their children. Employees are entitled to take up to 18 weeks unpaid parental leave per child. We would recommend communicating openly with employees in this situation and exploring all possible options and arrangements.
Employers should also beware of selecting employees for redundancy on the basis that they are unable to work for childcare reasons. Given that caregivers are predominately women, it is likely that female employees as a group would be put at a disadvantage by such a selection criterion, and this could therefore be considered to be a form of indirect discrimination. In addition, employees who request statutory leave, such as unpaid parental leave are protected from detrimental treatment.
FAQ 6. What are my options if I cannot offer full contractual hours when the business reopens?
Many businesses are likely to experience a significant reduction in work in coming months, in addition social distancing measures may make it impossible for businesses to operate at full capacity. The Government has now announced that the Coronavirus Job Retention Scheme will be extended until October, and, from August, employers will be able to recall employees to work on a part time basis. However, those employers who are already looking to begin recalling employees to work will need to consider alternative options if they are unable to offer full contractual hours to employees.
One such option would be to place staff on short time working, whereby employees’ hours of work are reduced on a temporary basis. Employers will need either an express contractual provision, or employee’s written agreement to place staff on short time working.
Employers should however note that, if employee’s pay is reduced below 50% for four continuous weeks, or for any six weeks in a 13 week period, the employee is entitled to resign their employment, and claim a redundancy payment from their Employer. Employers may only refuse this claim if they are able to provide counter-notice – that is, inform the employee that work will be available in the next four weeks and will last for at least 13 weeks without interruption.
FAQ 7. My employees have been working from home during the lockdown period and have requested to work from home on a permanent basis. Do I have to allow this?
The lockdown period has provided both employers and employees with the opportunity to trial new methods of working, and, for many employees who have had their first experience of home working, this may not be something they will be willing to give up easily.
All employees with a minimum of 26 weeks’ service are entitled to make a request for flexible working. This could be a request for reduced hours of work, a different working pattern, or for home working. Employers may only reject a flexible working request for one of eight statutory reasons. In respect of home-working, the most relevant considerations will be whether there has been a negative effect on quality of work, or the employee’s performance during the lockdown period. However, if you have had no concerns regarding the employee’s performance, or quality of work during the lockdown period, then you may struggle to justify refusing the request.
We will be issuing more detailed guidance on how to handle flexible working requests in coming weeks and would recommend that you speak to our Employment Law team before responding to any requests. If Wirehouse clients have any queries about recalling employees from furlough that are not addressed above, please contact our HR Advice line.
If you are not a client but have any specific HR questions or safety queries including social distancing and PPE in the workplace, please get in touch with the Wirehouse team today. We also recommend that you have a look at further guidance on our online COVID-19 Back to Business Advice page.