The Furlough-down: How to unfurlough your staff

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.