Can I force my employees to return to work from furlough leave?

Update: On 3rd March 2021, Rishi Sunak announced in his Budget that furlough leave would now be extended until the end of September 2021.

On 31 October, it was announced that the Coronavirus Job Retention Scheme would be extended until the end of March 2021.  You can find out more about the extension in our latest Updated Coronavirus Job Retention Scheme Guidance article.

The Prime Minister announced in his speech on 10 May 2020 the updated position with regard to lockdown and stated that those who cannot work from home and who can travel to work without public transport should return to their workplace where possible. As employers start to bring their employees back from furlough leave, some may find that their employees refuse to return to work as they feel that it is not safe to do so. Our Employment Law team here discuss how employers can manage employees returning to work and the rights that they have in forcing a return.

Coronavirus - Health and Safety Considerations

As an employer, you have a duty to take steps that are reasonably necessary to safeguard the health and safety of your workers whilst at work and so you need to carefully consider what steps you are able to take to protect your workforce from the risk of contracting coronavirus in the workplace.

When planning the return, you must:

• consult with staff and employee representatives, including any trade union representatives and health and safety officials.
• undertake a risk assessment to identify and reduce the risks of employees contracting coronavirus at work. You should implement social distancing measures in the workplace where it is possible to do so. This may require you to roster employees or stagger the return to work over a longer period. Face to face meetings should be minimised where possible and phone calls and video conferencing used instead.
• ensure a high level of cleanliness in the workplace by regularly disinfecting tables, worktops, keyboards, telephones, printers and door handles; display posters advising staff to wash their hands regularly; and ensure there are sufficient numbers of sanitisers and hand-washing facilities. You may also consider requiring your workforce to wear face masks and other forms of PPE (Personal Protective Equipment).

You should also ensure that your workforce know of and understand the action plan you have put in place for when a member of the workforce develops symptoms.

Once you have carried out the necessary risk assessments and have implemented the required measures to protect your employees, you can then look to slowly introduce employees back to work. You will need to take the relevant employees off of any furlough leave which they have been on.

Giving notice to come back from furlough leave

When you provided your employees with notification that they were being placed on furlough leave, the notification should have stated the notice provisions applicable for any return to work. In some cases this could be a week’s notice or it could even be as little as a day’s notice.

You should contact your employees to inform them that you now require them to attend work. You should also inform employees of the provisions you have put in place to safeguard their health and wellbeing when attending work and share with them the outcome of any risk assessment which you have carried out.

Employee’s refusal to return to work

Where an employee refuses to attend work despite the business having appropriate health and safety measures in place, this could amount to unauthorised absence. You need to carefully explore why the employee is refusing to come to work; you should do this by having a conversation with the individual employee as to their concerns with regard to returning.

It may be that the employee is in a particularly vulnerable group and has a health condition which places them at higher risk of contracting COVID-19 than other employees. Where this is the case you should be making appropriate adjustments in order to mitigate these risks. Where this is not possible, you may need to consider the possibility of keeping an employee on furlough leave. If this is not an option, those employees who are shielding or who are displaying symptoms may be eligible for Statutory Sick Pay (and possibly company sick pay depending on their contracts).

If the reason for any refusal is to do with caring for vulnerable relatives or even to do with childcare responsibilities then you may consider keeping that individual employee on furlough leave. The Government confirmed on 4 April 2020 that its furlough scheme is available for staff who are unable to work because of caring responsibilities.

You should talk about any concerns with your workforce and try to resolve them together. Discussions like these can also help to direct staff to any health and wellbeing support that’s available, for example Occupational Health, mental health services or an employee assistance service.

Options available for businesses

If an employee still refuses to attend work, then you could arrange with them a period of annual leave or even approved special unpaid leave, although you do not have to agree to this. If the reason for the refusal is not to do with a health condition or caring responsibilities and you feel that the employee can be reasonably expected to return to work then you can insist on the employee doing so.

If the employee then does not attend work, they would be classed as being on a period of unauthorised absence and you can withhold pay from the employee. An employee will not be able to benefit from the furlough leave payments as it is up to you as a business to claim this on their behalf.

Any unauthorised absence can be dealt with as a disciplinary offence and depending on your individual disciplinary procedure may be classed as gross misconduct. The employee may also have failed to follow a reasonable management instruction which can be dealt with as a separate disciplinary offence also. Employees should be warned of this when they inform you of a refusal to return to work and be made aware of the necessary steps you may need to take if they do unreasonably refuse.

The topic of furlough leave has been one of great discussion since the pandemic began and the CJRS was launched.  You can find out more information about the scheme via our additional articles below, alternatively you can contact the Employment team with your questions on 023 8071 7717 or email employment@warnergoodman.co.uk:

• Furlough Leave: update and actions employers need to take
• What is Furloughed Leave and how does it work?
• Can my apprentices continue learning while on furlough leave?
• What should I pay my furloughed employees who have just come back from maternity and paternity leave?

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.