What Comes After Furlough Leave?

Issue 59

Alexandra Besnard, Senior Associate at Newcastlebased specialist employment firm Collingwood Legal, comments on key issues for employers managing a return to the workplace amidst the Coronavirus crisis.

The last few months have been a bit of a whirlwind. In 15 years practising as an employment lawyer, I have never seen so much activity in the employment law field in such a short period of time. The ongoing pandemic will have had a significant impact on everyone. Employers have had to grapple with keeping their employees safe, organising home working at short notice, keeping abreast with a fastchanging environment and ensuring that their business remains as healthy as possible in these difficult times. Employees will have had significant worries about juggling childcare and home schooling as well as continuing to work from home, isolation from family or dealing with potential financial worries.

Although employers may now have had the opportunity to take stock of the new concept of ‘furlough leave’, before long they hopefully will be able to start increasing their activities again and “unfurlough” staff. This may however open an entirely new set of questions and difficulties. Whilst at the time of writing the Furlough Scheme will be available until October, changes to the scheme are expected from August 2020. Further updated guidance may also be available, but here are some broad recommendations to help you with the “unfurloughing” process.

How should an employer decide who is unfurloughed?

Employers will have to decide on what basis they select employees to be unfurloughed, just in the same way as they selected employees to be furloughed initially. Equality law in this area remains applicable and therefore employers should ensure that any selection is fair. Clear communication between the employer and their employees will be key to this.

What about employees who don’t want to return to work?

Where an employer requires an employee to return from a period of furlough leave and the employee refuses, an employer must act carefully. Whilst employers may pursue a disciplinary process for any refusal to return to work, caution is necessary before proceeding. It will be important, in the first instance, to address the employee’s reasons for refusing to return to work: the employee may be shielding as a result of a pre-existing medical condition or someone they live with is shielding, they may have childcare issues if they return to work, they may have developed mental health issues or they may be concerned about their health and safety.

In the context of health and safety, sharing with all employees the Risk Assessments carried out to organise a safe return to work and inviting comments and suggestions will ensure employees feel invested and reassured that their health and safety remains at the forefront of your mind. The government has published sector specific guidance which, if implemented, will be indicative of good practice and the guidance notes are a good starting point for your risk assessments.

It is important to highlight that in these uncertain times, consulting with employees and seeking their agreement, offering support and reassurance is likely to be key to a successful return to work.

Return to normal?

It will be important to communicate the return of previously furloughed employees to staff, clients and customers wherever appropriate. There may also need to be a period of adjustment for any employee who has recently returned to work in order to give them the necessary time to readjust. It may be appropriate during this transition period to allow flexibility, for example in relation to performance and targets.

Being unfurloughed may be a somewhat return to normal for many employees, however clearly things will not be as they were prior to the UK lockdown and both employers and employees will need to adapt to the new ways of working in the post-coronavirus world. Importantly, where possible, employers should do, not only what is necessary, but listen to their employees and take the appropriate steps to instil confidence. By demonstrating a willingness to implement safe working practices and listen to employees’ concerns, be that in a health and safety context or in relation to the workplace in general, employees will gain the confidence needed in order to return to some form of normality and efficient working

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