May 5, 2020

Returning Workers and Employees from Furlough Leave

Thankfully, the signs suggest the UK has passed the peak of COVID-19. Now, thoughts are moving to getting businesses up and running again. This includes returning workers and employees from furlough leave.

As you’re aware, the minimum furlough period is three weeks (it can be longer if needed). The Scheme is set to run until the end of October 2020.

Will changes in the workforce be needed?

The first two things employers will need to consider is:

  1. Whether staff can be safely employed and what if any changes need to be made to enable this.
  2. What staffing needs it has in terms of numbers and skills, considering among other things compliance with health and safety requirements identified for point 1 above, both initially and longer term.

Possible changes in the workforce could include:

  • All staff back to work who were previously furloughed
  • Some employees back from furlough, the rest remaining on furlough
  • Temporary changes to the workplace including transfers of duties (such as moving staff away from customer facing duties), staggered working, workplace distancing, continued working from home and hot-desking where possible and appropriate
  • Restructure of business and/or redundancies

How to select furlough returners

Ultimately an employer is entitled to run its business as it sees fit and employers have significant flexibility to do so. However, in general terms, an employer is obliged to act fairly and reasonably (particularly in regards to those employees with over two years’ service) and not to unlawfully discriminate against any employee.

Requiring all staff who were on furlough leave to return at the same time may prevent potential complaints as to selection fairness. But this may not, after establishing the answers to point 1 and 2 above, be possible.

Discussion and flexibility

As with employers, some employees will also have significant demands and difficulties placed upon them by COVID-19 and those factors will need to be considered by the employer. Staff may find themselves unable to return as before for any number of legitimate reasons which are currently out of their control. Staff who may have difficulties returning or need changes in the workplace will likely include:

  • Those who are at significant risk if they contracted COVID-19. This could include employees who are already acknowledged as being disabled and those who may now be considered as failing within the definition. Those employees will have a legal right for an employer to consider making reasonable adjustments. Occupational Health referrals may be appropriate.
  • Staff with increased family responsibilities, including family members at increased risk of COVID-19, as well caring responsibilities.
  • Anyone who has suffered bereavements and need time away from work.
  • Staff who have childcare responsibilities, particularly whilst schools and nurseries are shut or are likely to have staggered returns. Grandparents may not be able to assist with childcare as they may have previously.
  • Employees and workers who are generally reluctant to return due to health & safety or mental health concerns. Those who have been working from home may be reluctant (and/or don’t see the business need) to return to an office full time.

Accordingly, a flexible approach will likely be required. And an employer’s next step may be to contact each employee and establish whether they have any such concerns or difficulties as part of its planning. This may lead to asking certain employees to make a flexible work application which can be formally considered.

Next steps

Returning staff from furlough is inevitably going cause more issues for an employer than the initial furloughing of staff in late March. Therefore an employer will need to:

  • Be clear about what staffing needs it requires, both initially and longer term.
  • Be prepared to discuss and justify such proposals in advance of contacting affected employees.
  • Document and discuss any difficulties raised by individual employees, such as those identified above and consider and find workable solutions.
  • Confirm verbally and in writing to those who have been selected and agreed to return (and retain the written record of this for 5 years).

Redundancy

If an employer decides there is a redundancy situation, then it will likely need to take further advice specific to its situation.

Ultimately an employer needs be clear on its perceived staffing requirements in the short and medium term. This will include clearly identifying those roles (and pools of staff) at risk of redundancy, prior to beginning redundancy consultation with those affected. As has always been the case, the scoring criteria and its application needs to fair, objective and applied in a manner that does not unlawfully (even if unintentionally) discriminate.

Note that the calculation of redundancy pay for staff will be based on the amount the employee earned before they were furloughed.

If you’re a Moorepay customer and you’d like advice on how to return workers and employees from furlough leave, contact the HR Advice Line.

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About the author

Peter Collyer

About the author

Peter Collyer

Employment Tribunal Consultant

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