By David Reid, Director.
This afternoon, the Chancellor of the Exchequer announced that the Coronavirus Job Retention Scheme is being extended by four months, until the end of October 2020.
The Chancellor clarified that employers can continue to claim for furloughed employees’ wages costs at the rate of 80% of their monthly wages, up to a maximum of £2,500, until the end of July 2020.
From August 2020, the Scheme will continue to support all sectors of the UK workforce but will be more flexible to assist employees in their return to work. The Chancellor indicated that at this point, employers using the Scheme will be able to bring back furloughed employees to work on a part-time basis, while still being able to top up their wages via the furlough scheme.
A number of our clients, however, are ready to start the process of gradually returning employees to work now. Therefore, we have set out below some of the basic steps and considerations to bear in mind when you are ending an employee’s period of furlough and bringing them back to work.
How should an employer inform employees that they are no longer furloughed and are required to come back to work?
This can be done verbally or in writing. It would be reasonable to give an employee a minimum of 24 hours’ notice, if you have not specified a period of notice for recall to work in your furlough agreements.
As a practical matter, slightly longer notice may be required if the employee has caring responsibilities, for example due to schools being closed. You should take advice if the employee is unable to make alternative caring arrangements to allow them to return to work.
Employers should ensure that they give employees reasonable notice that they will no longer be furloughed and confirm the date that they are due back at work.
If an employer only wants to bring a limited number of employees back to work, how should they decide who is brought back?
If an employer was proposing to “pick” one or some employees from a wider group to return to work from furlough, it would be prudent to consider whether there could be any legal risks, such as claims of discrimination, arising from simply picking and recalling one or some out of a group.
It would be safest to consult with employees to understand who would be prepared (or indeed who would be keen) to return to work before making these selections. It would be sensible to choose the most willing people to return first. If more people want to return than you can accommodate in the short term, objective selection criteria could be applied to each employee to determine who should be called back to work. We can assist you with devising suitable criteria.
Alternatively, you may consider bringing employees back to work on a rota basis where employees would work for a minimum period of three weeks and then return to being furloughed, subject to them satisfying the eligibility requirements for the furlough scheme.
What if an employee refuses to return to work?
In all cases, the background and reasons for any employee’s refusal should be carefully considered on an individual basis. Having blanket rules about how any employee’s concerns will be dealt with may be difficult to defend.
It is clear that the most clinically vulnerable employees, who have been told to “shield” at home for 12 weeks, should not be asked to return to work at the present time.
The next category of “vulnerable” employees – those aged over 70, those with chronic medical conditions which typically entitle them to a free flu vaccination, and pregnant women – are not prohibited from returning to work, but you should discuss carefully with them the steps you have taken to make their workplace “COVID-Safe” and try to address any concerns they have before asking them to come back to work. Where home working can continue to be accommodated, you should continue to do so.
For people who are not vulnerable themselves but live with other people who are, again there is no legal bar for them to return to work. However, it is not unreasonable for people in this position to have genuine concerns about the risk to the health of members of their household if they do return to work. Again, providing clear and comprehensive reassurance that their workplace is “COVID-Safe” will be very important.
Finally, for people who are well themselves and do not live with any vulnerable people, but who are simply not willing to take the level of risk they perceive to be involved in returning to work, the initial response should be sympathetic, at least until the nature of their concerns is fully understood.
In all cases, consideration needs to be given to whether the employee is disabled under equality laws, or lives with someone who is disabled (since associative discrimination laws may apply in the latter case). Where an employee or member of their household may be disabled, the employer may need to consider whether leaving the employee on furlough in favour of asking someone else to return to work is a “reasonable adjustment” required by the legislation. We will be pleased to advise clients on any particular situations they are dealing with in this regard.
Generally speaking, where an employer has taken all reasonable steps to alleviate an employee’s concerns and is satisfied there is no significant equality law risk, if the employee simply refuses to return to work without a good reason, an employee who refuses to return to work could potentially be placed on zero pay, if it is not appropriate to allow them to remain on furlough. Consideration should be given, first, to whether the employee is fit for work, or whether their level of anxiety about their return might make them eligible for statutory or contractual sick pay. It may also need to be considered whether the employee’s anxiety is a chronic condition, and therefore potentially a disability.
Only in the very clearest-cut cases would we recommend short-term consideration of any disciplinary or dismissal action against an employee who initially refuses to return to work. The position might be different as time goes on, but as stated above, the initial response ought to be a sympathetic one wherever possible.
What should an employer do to ensure their workplace is safe before employees return to work?
All employers must undertake a “COVID-Safe” risk assessment of their working premises. The government has issued guidance document entitled, “Working safely during coronavirus (COVID-19)” which can be accessed here.
Template risk assessment forms are available via this site. We will issue a further JEL alert tomorrow with more information about this process.
In the meantime, if you have any questions around the scheme, or if you have any other employment law queries, please don’t hesitate to contact a member of the team on 0141 331 5150.