Can I refuse to return to work from furlough

The Coronavirus Job Retention Scheme (furlough) starts to wind down as of next month and many businesses are starting to re-open under the new ‘flexible furlough’ rules as the government allows them to unlock.

UPDATE: Furlough has now been extended until September 2021. You can read about the extension here.

Returning to the workplace after furlough

For many employees, this means returning to the workplace in some capacity. There might be changes to hours and days or a shift towards working from home.

Understandably, a lot of people are still concerned about the coronavirus - which continues to dominate global headlines - and whether returning to work is safe.

Chris Dobbs, solicitor in our specialist Employment law & HR team  answers some common questions about returning to work after furlough and when you might feel unable to do so.

If you are an employer, Chris has written an article specifically for employers facing these situations that you can read here.

Can My Employer Force A Change In My Terms of Employment?

Employers can, in certain circumstances, impose changes to the terms and conditions of your employment. There might be certain provisions which the contract itself allows them to change. However, in the vast majority of cases a major change, such as your hours, will require your agreement.

The first thing to bear in mind is that it is probably to your benefit at the moment to accept proposed (and especially temporary) changes. The alternative might be that your employer has to make redundancies and in the current climate you may consider yourself to be better off working part-time than not at all.

Can I refuse to accept changes to my contract of employment?

If you don’t agree and your employer wants to make changes anyway, they have two choices: simply impose them unilaterally, or terminate your existing contract and reengage you on new terms. Both are risky from a legal point of view, especially if you have more than 2 years’ service with the employer as they could give rise to a constructive and/or unfair dismissal claim.

How you react to new terms being imposed is important. Not doing anything and carrying on with the new terms could be taken to mean that you have accepted the change. If you are unhappy with imposed terms, you should immediately seek legal advice on how to respond.

Can I Be Dismissed or Made Redundant While Furloughed?

Yes. While on furlough you are still employed and subject to all the usual terms, conditions and rights associated with being an employee or worker.

This means that you are still bound by your contract and your employer is still bound by employment legislation. Providing they follow the correct processes (with, I suspect, some allowance for the covid situation) your employer will be able to dismiss you or make your redundant while on furlough.

Being on furlough, however, is not an excuse for an unfair dismissal procedure or for an employee to conduct a redundancy process incorrectly. There are strict rules concerning making redundancies, especially if the company is making more than 20 in one go, and the procedures should be followed. If you believe you are being unfairly dismissed or made redundant incorrectly, seek legal advice.

Working From Home

Until recently the consistent advice from government has been to work from home if you can. Homeworking is increasingly being used very successfully by businesses who have taken advice on how to implement it to its best practical use and also in compliance with all necessary law.

Can I Be Dismissed For Refusing To Work From Home?

The current government advice on this is that employers should be taking socially responsible decisions and doing what they can to facilitate flexible arrangements. A dismissal for refusing to work from home is likely to be attempted either as a conduct issue (refusing an instruction) or a point of capability (unable to fulfil a part of your role).

Both are potentially problematic for an employer. Ultimately, they employ you to fulfil a job for them and they are responsible for ensuring you have the facilities to do this. However, it can be fair in several circumstances and the reasonableness of your refusal will be important. This kind of dismissal is likely to be fair where:

• There is a good business reason for the decision to work from home
• All reasonable alternatives have been considered and discussed with you
• A fair procedure for implementing the change has been followed and you have been consulted with
• Your employer has dealt with the practical issues which might stop you working from home

An unlawful dismissal is most likely to arise where the employer has discriminated in their approach to homeworking or where they have imposed the change without providing you any assistance, guidance or support in working from home.

Can I Be Dismissed For Insisting That I Work From Home?

This will depend on the reasons behind your insistence and why you think that you should be working from home. If it is simply a matter of preference or because it is more convenient for you to do so, your employer is entitled to refuse.

A refusal to work from your usual place of work is probably a breach of your employment contract or may be considered misconduct. Both could justify disciplinary action and even dismissal.

On the other hand, requests to work from home might be due to childcare commitments, to help cope with a disability or because of a genuine concern about your own health and safety at your place of work. In these cases, your employer could be at risk of discriminating against you if they refuse to consider a request to work from home.

Can I refuse to return to work from furlough?

Under normal circumstances the answer to this is: no. You cannot generally refuse to work without being in breach of your employment contract. Refusing to work is a pretty fundamental breach of contract and in many cases will justify disciplinary action and probably dismissal.

However, the current climate may create situations where a refusal to return to work could be justified. This would be especially true where there is a general risk to health in the workplace or, for specific individuals, where they might be at a particularly increased risk to their health.

Health and safety at work

Sections 44 and 100 of the Employment Rights Act do not come up very often but they give employees the ability to refuse to come to work if they reasonably believe there is a “serious and imminent” risk of danger.

Refusing to work due to health and safety concerns

A refusal to return to work because of the risk of contracting coronavirus has not yet been tested in the courts but I suspect an employer will struggle to show that a global pandemic does not amount of a potentially “serious and imminent” risk to health.

The second part of this kind of claim is to show that there was no way the employee could “reasonably have been expected to avert” the risk.

COVID: What does an employer have to do to mitigate risks?

This may prove problematic if the employer has taken reasonable steps to mitigate risk. As an absolute minimum this should be following all government guidance where practically possible and carrying out risk assessments for particularly vulnerable members of staff.

Many employers are going beyond these basic requirements. However, the test is subjective and if you reasonably believe that there is a risk in your workplace, actions up to and including refusing to go to work can be justified.

There may also be claims for disability discrimination if an individual is unable to return to work because of a company’s failing to take steps to mitigate their risk of exposure.

An employment law & HR specialist's view

Coronavirus has had a significant impact on how we approach the workplace and our methods of working. As the furlough scheme winds down, employers will be making difficult decisions about staffing, space and the manner of working.

Staff remained employed while on furlough and there have been no changes to existing employment or discrimination law as it stood before the virus. Processes and procedures must be followed and staff with more than 2 years’ service will have all their rights.

Employment law updates during the coronavirus outbreak

We will post any announcements, along with advice for employers and HR professionals as soon as we are able. These will be shared on our website and on social media.

Our Employment and HR newsletter will continue to be sent out monthly, though as important information is announced by the government, we may send this to you more frequently.

Our quarterly employment seminars are postponed until further notice, though we are looking into ways of delivering these online.