After the end of furlough, Employment Solicitor Chris Dobbs answers some of your questions on returning to work, providing advice for employers on what grounds employees can refuse to return.
When does furlough end and what does it mean?
The Coronavirus Job Retention Scheme (furlough) ended on 30 September.
As of the end of July 2021, Government data indicates that some 2 million people remained on the scheme although that number did gradually reduce.
Through August and September, employers have been contributing to the wages which has also encouraged a return to work for those still on the scheme.
Here we address some of the most common questions concerning getting employees back into work.
Can I force employees to return to work from furlough?
The simple answer is yes. The employment relationship is governed by a contract which at its most basic level is the exchange of work for pay.
Refusing to work is almost certainly a fundamental breach of that contract. However, the relationship is governed by employment law which means it is not always that straightforward.
Most employment contracts will also state that the place of work is an onsite location which means refusing to attend can amount to a breach of contract and a potential conduct issue. However, employers do need to explore the reasons for any refusal before taking automatic action.
When can employees refuse to work?
Staff who do not show up for work should not expect to be paid unless the absence is medical (under a fit note) or due to suspension by the employer. However, employers should be very careful about any decision to discipline or sack them.
Workers still have a right to refuse to be at the workplace in order to protect themselves from “serious and imminent” danger. While the coronavirus remains a public health emergency on a global scale, employers are likely to struggle to argue that it is not “serious and imminent”.
Employees might also be able to refuse if they are likely to be put particularly at risk and employers should be extra cautious of disability discrimination claims or for constructive dismissal arising from pressuring an individual to return.
Can employees refuse to return to work for Health and Safety reasons?
These claims come from s44 and s100 of the Employment Rights Act which provide protection against detriment and dismissal for employees in health and safety cases.
An employee is unfairly dismissed if they are dismissed after leaving the workplace due to a ‘serious and imminent’ danger which they believe cannot be reasonably averted. They are also protected if they are dismissed for taking steps to protect themselves from that risk.
Cases have started to emerge on actions taken by an employee during the pandemic which they claimed to be in the interests of health and safety under this legislation. I explored some specific cases in this article.
Is Coronavirus considered a ‘Serious and Imminent Danger’?
Even where an employer has taken steps including risk assessing, imposing social distancing and providing PPE to staff, the fact remains that these are steps designed to reduce the risk rather than change the nature of it.
These cases are subjective, and the important question is what the employee in question reasonably believed when taking action. This subjective assessment is likely to go in favour of employees at the moment.
Cases are being decided on the matter as it was some 12 months ago and we know that Government advice has been downgraded significantly in recent months.
While it may be true that the country is returning to some form of normality, the argument will remain that guidance and legislation are still in place to tackle covid as a specific national health crisis.
The idea that is could be a ‘serious and imminent danger’ remains a perfectly valid argument.
What are ‘Appropriate Steps’ in employment?
Appropriate steps in this case are actions taken by the employee to reduce the risk in the absence of measures being put in place by the employer. At the extreme end of the scale, and where no alternative presents itself, this could be a complete refusal to come to the workplace.
If an employer has not provided the option to work from home then this will equate to a refusal to work.
What is and is not appropriate will be case dependent.
The tribunal will also consider any actions already taken by the employer to reduce the risk but ultimately this remains subjective.
If the employee reasonably believes that measures taken by their employer were not sufficient, they can take their own steps.
What safety measures should businesses be introducing after furlough?
Following all government and public health guidelines is probably an absolute minimum. Beyond that, it is almost impossible to list what every employer should be considering as many things will be dependent on the nature of the role and the member of staff in question.
Risk assessments will be key to demonstrating that you have considered the risk, ways to mitigate that risk and reached a conclusion on the feasibility of actions.
Specific risk assessments for coronavirus are available but employers should make sure these are tailored to your business and staff.
Managing Returns
Communication and information will be key. Staff who have not been in the workplace for a long time, whether due to homeworking or being on furlough, will need support to reintegrate and it is vital that they feel informed and updated of any business plans.
Where hybrid working models have been introduced by the business (as many employers have done), ensure that staff are aware of these, of any criteria for consideration, and the patterns which the business is willing to consider.
I explore a few key considerations on hybrid working models here.
An Employment Solicitor's View
Chris Dobbs, member of our specialist Employment Team, says: As we keep being told, these circumstances have been ‘unprecedented’.
Health and safety law does tend to fall in favour of employees and some will continue to have strong arguments at present where their commute, work environment or nature of role could be argued to place them in serious and imminent danger.
Most people will want to get back to work in some capacity and communication is going to be key to ensuring that staff are able to do their jobs safely. This may mean doing so in a new way or with different considerations but the safety of staff should be top priority.
Employers should look at all the options, listen to suggestions from reluctant employees and implement those which are reasonably possible. This might be home working, flexible hours, the provision of PPE or a temporary reassignment to a different and less risky role.
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