We are pleased to bring you an article from Avensure, one of our Employment Law partners. This comprehensive review focuses on the challenges being faced by employers who are planning the return of their workforce, answering some frequently asked questions, and offering myth-busting tips.
Do I have to bring my staff back to work on part-time or flexible furlough or can I continue to keep them on full-time furlough?
It is whatever suits the needs of your business. You can choose to keep some or all your staff on full-time furlough or you can have some employees on full time furlough with some returning to work on flexible furlough.
When deciding who to keep on furlough and who should return, please be mindful that you are not making decisions which may be deemed to be discriminatory.
For example, part-time employees are specifically protected from less favourable treatment due to their part-time status. If you decided to just bring back your full-time staff, this may land you in hot water. Always check with our experts.
I am due to re-open having been closed since lockdown began in March. I know I will not need everyone initially, so how do I manage this?
Many businesses have been using furlough on a rotational basis. For example, they have split the workforce into groups with one group being furloughed, coming back after 3 weeks and then the next group on furlough and so on.
You will be able to adopt a similar system until such time as your business levels begin to improve.
This also reduces any suggestions of unfairness or discrimination. It will also ensure that employees do not begin to lose their skills by being away from the workforce for an even longer period.
I have an employee who is simply refusing to work. They say that we will not be that busy, some of their colleagues are still on furlough and it’s not costing me anything so why am I insisting they come back?
Had COVID-19 never darkened our doors, what would staff be doing currently? Answer - they would be working; hence you are not asking them to do anything they would not ordinarily have been doing otherwise.
Furlough is your decision; it is not a statutory entitlement that an employee can insist upon.
Assuming this employee is just being obstinate, their refusal to work is likely to result in their absence being classed as unauthorised (hence unpaid) and may result in formal disciplinary action being taken.
I have an employee who is insisting they continue to work from home, even though I can safely re-open the workplace. They cite the government recommendations that if you can work from home, you should.
This message has been very confusing for everyone and with it there has been this underlying assumption that employees have a right to work from home.
However, whilst the ‘if you can work from home, you should’ advice from the government is still in place, it was brought in initially as a means of keeping the public safe and protecting the NHS.
The virus is still with us, but some lockdown restrictions are beginning to ease, and it is worth noting that after 1st August even those who are classed as ‘extremely vulnerable’ will no longer need to shield. The advice is; ‘you can go to work, if you cannot work from home, as long as the business is COVID-19 secure’.
So, bearing that in mind, if an employee simply has a preference to carry on working from home that is not something you have to agree to.
Be aware, that there is no blanket ‘one size fits all’ answer to this; each scenario should be based on its merits, do not hazard a guess, call our experts.
What about flexible working?
As with the question above, many employees may have adopted a working pattern which they prefer and may want to keep it going.
As long as you are not asking your employees to work unsafely then you are right to expect that when they fully return to work, they do so on the same working pattern they had prior to lockdown.
Bear in mind though, that employees can make a statutory flexible working request to their employer, if they have 26 weeks consecutive service and have not made a similar request in the last 12 months.
Under a flexible working request, they may ask to change their working patterns, such as their start/finish times, reduce their hours and so on. The employer has a legal duty to consider such requests, so please do not simply dismiss these out of hand. Instead, ask your employee to submit their request in writing and seek our advice.
There has been a lot of bad feeling regarding furlough amongst my staff. Some feel that their colleagues have been lazy and taken advantage of the situation. I am concerned this may affect working relationships once everyone returns.
Some businesses have been completely shut down, some have been able to remain functioning with people working from home and others have been partially open, usually because they have been providing an essential service.
Some employees have never been furloughed; others have been working whilst their colleagues have been furloughed and so on.
This has caused some bad feeling in the workplace and in society in general with Martin Lewis even coining the phrase ‘Furlough Shaming’.
As stated previously though, furlough is not an employee’s choice, it is the employer’s decision and any unprofessional conduct amongst staff, for whatever reason, should be dealt with appropriately.
Can I insist that employees take annual leave during furlough?
You can do this during furlough and at other times in the holiday year.
Please be aware that if an employee is taking time off on annual leave during furlough you will be required to ‘top up’ the remaining 20% of their pay.
You will also need to give them notice. The rule is that you give them twice the amount of notice as to the time you want them to take off. For example, if you want them to take a week off, they need to be given two weeks’ notice.
My employee has asked if they can cancel their annual leave because their flight abroad was cancelled. Do I have to agree to this?
No. Although we need to be a flexible here given the circumstances and really it is better to be proactive in your approach and enquire as to what your employee wants to do regarding their pending annual leave.
Your employees have a right to take annual leave but when it is taken is subject to the employer’s authorisation and in line with the needs of the business.
Please ensure that you seek advice from our experts as there is not always a ‘one size fits all’ answer to a lot of these scenarios and mistakes will be ever more costly for your business in the current climate. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0330 100 8704.
FACT OR FICTION?
It is illegal to conduct disciplinary hearings or grievance hearings during furlough.
FICTION. As long as the appropriate safety measures are in place, formal processes such as these can go ahead.
All periods of furlough must be 3 weeks in duration.
FICTION (sort of). The introduction of the flexible furlough scheme on 1st July 2020 means that furlough periods can last any amount of time; there is no minimum period.
Please note that any periods of furlough that commenced under the previous scheme still need to be of a 3-week duration, even if the period of furlough ends in July.
If an employee is on full-time furlough after 1st July, they are still not able to carry out work for their employer.
FACT. If you want your employee to work - even if it’s for 2 hours per week, they need to agree to be on flexible furlough. For the rest of the time they are not at work they should not be carrying out any work.
For further information, or to discuss queries specific to your business, please call Russell Smith on 07788 290 029, or email russellsmith@avensure.com.
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