Returning to work from furlough: legal issues for employers to consider

There will be a willingness, a necessity perhaps, to rush all of your staff back to work as soon as the Government permits. Careful planning can mean that you make this work, but sometimes a more cautious, phased return is likely to be more effective and safer.

There are inherent risks with treating everyone the same and there should be consideration of those in more challenging circumstances.

Here, we look at what you need to consider:

Who can't return to work?

• The Government has set out categories of individuals based upon risk factors and communicated with those most at risk. Of those that cannot return to work because they are shielding, they will be eligible to benefit from statutory sick pay from the first day of absence. Alternatively, they may also be eligible to be formally furloughed and recover the grant.
• Those displaying symptoms or testing positive, or living with someone who is, should remain at home for 14 days and only return once they have a negative test, or are no longer showing symptoms of the virus. The official symptoms from Public Health England should be considered regularly as it may be updated (for example to include loss of taste and smell).
• Approaching this blindly and without flexibility is likely to do more harm than good.
• Those that are extremely vulnerable (underlying health conditions) and therefore at high risk of developing serious health complications because of the coronavirus, or those who have had coronavirus, may well be considered to have a disability. Infection with the virus may be relatively short lived, but the impact could be life-long.
• Therefore, these categories bring about additional responsibilities on employers to make adjustments and remove any disadvantages that they may face both in a return to work, or in their ability to return in the short term.
• The duty not to treat a disabled employee less favourably extends to those caring for disabled people. It will be potentially unlawful to insist that these categories return to work and medical advice should be obtained.

How should I treat pregnant workers?

• In short, with greater care than you normally would. There is a duty on employers to assess the risk that the workplace has on pregnant women and their baby in any event. In the context of this pandemic, given the government guidance that they should remain at home, those risks are extended.
• Pregnant women and women on maternity leave have the right not to be treated unfavourably because of their pregnancy and/or maternity leave.

What if staff raise concerns?

• There will be workers too fearful of catching the virus to return to work, even if they are in a low risk category. This does not give an employer carte blanche to discipline, deduct pay or dismiss, even if they remain at home.
• It is unlawful to subject to a detriment, or dismiss someone, even where they have not been employed for two years, who has left work, refused to attend work or raised concerns about the whether it is safe to be at work where they believe it is unsafe and where the action taken by them is reasonable.
• A reasonable management instruction to attend work won't be reasonable in certain circumstances. Similarly, a refusal to attend work won't be reasonable in some circumstances either. Consult, understand, manage and seek advice before trying to resolve.

What about parents with childcare responsibilities?

• A significant hurdle for parents returning to work before schools open is going to be arranging childcare. In many cases, this may be an absolute barrier.

• The default is that employees have the right to reasonable time off for dependants in emergency situations but only where the time off is unexpected. Taking parental leave is an alternative, to care for a child of up to 18 weeks. There is no statutory right to pay, but there may be a contractual right.

• Parents or carers are still eligible for furlough in these circumstances, at least until October (subject to updated guidance) and so this may resolve the issue for many if schools re-open as normal in September.

• Flexible working requests are likely to be abundant and rejecting them where reasonable alternatives may be possible is risky. Parents who have been working from home and caring for children, often home-schooling at the same time, will suggest that they can continue to do so. There may be no good reason to reject an application.

• There is also a risk of indirect discrimination claims for women with childcare responsibilities who are not allowed to work flexibly.

Contractual implications of returning from furlough

• Employers who placed workers on furlough were required to confirm the main terms and conditions upon which the employee will cease all work in relation to their employment, preferably in writing. It may be that the terms of that letter/agreement provided for a return to work. If it did not, consultation is again required to change the contract between the parties. This will include the return date, any changes to pay (typically returning to normal remuneration as before furlough) and any other considerations or logistics associated with physically returning to work.

• If the worker is expected to return to work on a part time basis initially, so as to continue to benefit from the furlough grant in between August and October (or any other extended period) then, subject to the specific guidance issued by the Government, this will need to be agreed and clearly communicated in writing.

• An employer should tread very carefully around compliance with the furlough scheme. There are growing reports of employees being asked to work, sometimes pressured into working, during a period of furlough. In simple terms, this would constitute fraud, but it may be less black and white where, for example, the return is on a part time basis and there is uncertainty about when work can be carried out and when it is prohibited.

Holidays

• Employees will continue to accrue their holiday entitlement throughout any period of furlough and given that they may not choose to take it when they are already not working and restricted from travelling, many will have a substantial number of days to take when they return to work.

• The government has already legislated to ensure that there is a right to carry over 4 weeks' holiday into the next two years (and the 1.6 weeks, public holidays, can be carried over into the next year by agreement), so this should help businesses in their recovery without losing so many working days to holiday time.

• Holiday must be paid at the normal rate, not the furlough rate of 80% (capped at £2,500).

• Employers can compel workers to take holiday during furlough by giving appropriate notice in advance (at least twice as long as the length of the proposed period of holiday). Holiday can also be refused and cancelled with the right amount of notice.

How do I overcome these legal issues?

It is also preferable to be guided by your HR team or to seek external advice, but for small business, the best thing that they can do is to talk to staff. Understand their circumstances and ensure that you are taking all reasonable steps to protect those who are most vulnerable.

This is primarily for the good of their health, but also a key component of the success of a gradual re-opening of the economy if we are to avoid a return to restrictions and temporary closures of businesses. The recovery can only be achieved if there is a safe and sustainable working environment within which to resume operations.

For further information and advice, please contact Employment Law Partner Joe Nicholls on 0117 943 4820 or email joe.nicholls@wards.uk.com