15 Sep 2020

The Furlough-down: How to unfurlough your staff

The Furlough-down: How to unfurlough your staff

‘Unfurloughing’ employees is another new concept but we would recommend that you communicate with your employees and, where possible, seek agreement on the terms of their return.

We get asked about this, and other Coronavirus Jobs Retention Scheme matters, a lot! So, we have collated a number of frequently asked questions that may be of some relevance to you and your business.

We've broken them down into five topics, simply click the links below to read each article:

  1. An update on furlough and the Coronavirus Jobs Retention Scheme 
  2. Flexible furlough - what is it and how to use it 
  3. Exiting furlough and unfurloughing staff (THIS ARTICLE)
  4. Making redundancies in a covid world
  5. Changing staff terms and conditions

How we should decide who to ‘unfurlough’?

‘Unfurloughing’ employees is another new concept but we would recommend that you communicate with your employees and, where possible, seek agreement on the terms of their return. Again, you should confirm any agreement and/or changes in working patterns in writing. When deciding which employees to bring back to work, you may wish to consider asking your employees:

  • Are they shielding or living with anyone who is shielding?
  • Are they or a member of their household in a vulnerable category?
  • Do they need to travel on public transport to get to work?
  • Can they continue to work at home? If employees can work at home, even partly, this should be considered.

Where only a proportion of employees are to unfurlough, and in the absence of sufficient volunteers, you could decide who should return by carrying out a scoring matrix. If you decide to do this, you should ensure that you apply objective criteria and consider what is required by the business in terms of the work to be done initially, and the most efficient way of doing this. Be careful not to use discriminatory criteria.

What can I do if an employee refuses to come back to work?

This is a concern that many employers are having and there are several issues to consider. Some are concerned that employees will not feel safe returning to work, and others are concerned that employees may refuse to come back citing, for example, childcare issues.

In the first instance, you should consider the employee’s reasons carefully. If the employee is worried about their safety, reassure them about the measures that have been put in place. Consider in particular any concerns from someone who is shielding, or living with someone who is shielding, or is pregnant or living with someone who is pregnant, or in an otherwise vulnerable category. It may be suitable to keep them furloughed for the time being.

Consult with the employee and consider any alternatives such as home working. If that is not possible  environment then ultimately you could potentially consider their failure to return to work a disciplinary matter.

However, you should be wary of proceeding on a disciplinary basis as dismissals due to raising health and safety concerns can be deemed to be automatically unfair by an Employment Tribunal. Whilst, in practical terms, the reason for the dismissal may well be the refusal to follow a reasonable management instruction/attend work, in reality the circumstances will be very similar and it is a difficult one for employers to navigate. You should take advice if you are in this situation.  

If an employee asserts that they cannot come back to work due to childcare issues, then again you may wish to consider keeping them furloughed, but this may become less financially viable as the tapering contributions increase. Employees are entitled to take time off for dependants (usually a couple of days) or parental leave (a few weeks), both of which are unpaid (unless contractual terms to the contrary exist). An alternative would be for the employee to use their holidays, or to consider if they can work different hours/doing a slightly different role temporarily. This is a difficult situation that is likely to come up and will require careful consideration, but ultimately an employee is generally not entitled to be paid if they are not able to work.

In these circumstances, you could consider whether a period of unpaid leave is appropriate, at least for a short amount of time, rather than immediately looking to start a disciplinary process.

    Employment law experts

    Aberdein Considine’s national employment law teams assists both individuals and businesses with employment legal matters.

    Click here to get in touch or get in touch with the team directly using the links below:

    Disclaimer: This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. Aberdein Considine is not responsible for any activity undertaken based on this information.

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