Returning to work from furlough Q and A

Chris Dobbs, solicitor in our specialist employment law & HR team, answers employers' questions about staff returning to work after furlough.

What do employers need to consider as staff return to the workplace from the furlough scheme?

As the government starts to wind down the Coronavirus Job Retention Scheme, many businesses are taking advantage of the flexibility in lockdown rules and staffing options to reopen.

The change in rules on 1^st July means that staff can now be brought back on a flexible basis with the government continuing to meet some salary costs until the scheme closes at the end of October. You can see full details of the flexible furlough scheme in my colleague Paul Burton's article here.

Employees with safety concerns on returning to work after COVID

There is, of course, still a global pandemic and many people are understandably concerned about returning to the workplace and keeping safe while at work. The example receiving the most media attention is schools. Tribunals will, I suspect, be sympathetic to employees who have a genuine belief that they will not be safe to return to work.

Here we address some of the most common questions concerning getting employees back into work.

Can I force employees to return to work?

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.

When might employees be able to refuse to return to work?

Staff who do not show up for work should not expect to be paid however employers should be very careful about any decision to discipline or sack them.

Workers 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 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.

Could employees refuse to return to work on health and safety grounds?

Probably, yes. These claims come from ss44 and 100 of the Employment Rights Act. These 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.

Is Coronavirus a ‘serious and imminent danger’?

I suspect tribunals are likely to be sympathetic to employee arguments on this point. I am struggling to see a case where a global pandemic is not going to qualify as a ‘serious and imminent danger’ to health in some way.

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.

What might ‘appropriate steps’ look like?

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 business be introducing post-lockdown?

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.

How to manage at risk employees returning to work from furlough

A significant number of people were told by the government to shield themselves from all non-essential contact during the virus. The majority of these people fell into vulnerable categories often due to long term medical conditions which would almost certainly amount to a disability.

From 1^st August, that advice is set to change and these people will no longer be advised by government to shield themselves and they will be allowed to return to work. Employment law has not changed and employers will still be bound by their duty of care to these individuals as well as their duties under the Equality Act and health and safety legislation.

Individual coronavirus risk assessments for vulnerable people

What might be appropriate protective measures for employees who have already returned to work may not go far enough for staff who had been shielding. Individual risk assessments considering each person’s specific needs are advisable.

Remember that it is not just shielded individuals who might fall under the definition of particularly at risk. Even those with minor respiratory problems or older members of staff are potentially at increased risk.

An employment law specialist's view

As we keep being told, these circumstances are ‘unprecedented’. Health and safety law does tend to fall in favour of employees and some will have particularly 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.

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.

We have a dedicated coronavirus page, where we will post links to all articles, fact sheets and downloads concerning the outbreak and implications for businesses.