What are the practical considerations of bringing employees back 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 April 2021.  You can find out more about the extension in our latest Updated Coronavirus Job Retention Scheme Guidance article.

With the furlough leave scheme ending on 31^st October and as more employees are being asked to return to work, it is important that employers are prepared.  Our Employment Law team review the practical implications involved, such as the necessary paper trail, whether a returning employee should return to the office or work from home, the importance of communication and planning for the future.

Supporting documents regarding furlough leave

Having written proof of an employee’s acceptance of furlough leave, whether it was on an email or through letter form, is vital in the case of an external audit. It is therefore important that for every employee you placed on furlough leave, you have written evidence of each person’s acceptance to the scheme. Moreover, any correspondence between you and furloughed employees must also be accessible and saved to the specific files in your system.

Frequent communication with furloughed employees

CIPD research has found that less than half of workers feel that they have been adequately consulted with about a potential return. Therefore, it is important to keep interactions with furloughed employees frequent in order to maintain a good relationship with them.

As redundancies increase, it is important to consider the value of employee relationships. A previously furloughed employee who is made redundant is going to be more understanding towards the situation if they have been made aware about the struggles of the business through communication with their employer, compared to an employee who hasn’t been contacted since they were furloughed.

The CIPD’s three furlough tests

The CIPD is urging employers to check that they pass three key tests when bringing furloughed employees back into the office. These are:

1. Is it essential?

If employees cannot work from home, it is important to consider whether their work is regarded as essential in order for the business to operate. Otherwise, it could be beneficial for you to use the furlough scheme for longer to ensure that you are prioritising their safety and also communicating with them effectively about their return so that it is handled more appropriately.

2. Is it sufficiently safe?

All employers must take action to ensure that their employees are returning to a safe environment and that all reasonable steps have been taken to achieve this.

It takes time to organise and achieve this and the steps required will also vary depending upon your business. Some sectors will have specific guidance (for example schools) so it is important that you leave enough time to prepare your offices for the return of employees.

3. Is it mutually agreed?

It is difficult to make assumptions about the situation of your employees at the moment and to expect them to be willing to come back into the office as soon as you ask them to. It is important for that you consider the fact that some employees live with other people, including children. The people your employees are living with or who they have responsibility for are now going to have an impact on your business. Moreover, the advice on public transport and whether or not it should be used is often changing and this is likely to have an impact on the majority of employees to some extent. Following the Prime Minister’s announcement last week and the general increase of coronavirus cases, some firms are now saying that they are not going to take any employees back into the office who require the use of public transport.  There will need to be flexibility on both sides to accommodate new working times or schedules as ways of managing these challenges.  When having these discussions with your employees, ensure to be open to suggestions that they may want to discuss with you.  Equally, if you need to make some changes as the employer, some people will be happy to take unpaid leave or change their hours for a period around their personal situation.

Plan the return to work in advance

When asking employees to return to work, it is sensible to have a plan in place for when this happens.  An example would be having a template which is similar to that which you would use when someone has been off sick but instead focusses on the return after lockdown.  The benefit of this is that you can ensure that you, or your line managers, are using a consistent approach and asking employees about all of the areas that may now be a problem in terms of actually coming back to work or which may manifest later such as mental health issues.

It is understandable that not everything can be planned for in advance, for example potential school closures. Despite this, it is important that different situations and scenarios are considered. It is recommended that employers start planning now for what their approach will be if this happens. They should let their line managers know the plans in advance so that there is not risk of mixed messages going round in the business.

It is highly advisable to have a consistent communication policy for if an employee tests positive for the virus after returning to work.  If colleagues could have been exposed to the infection, it is essential that you let them know quickly in a calm way and explain what steps the business will be taking. Businesses must withhold the infected employee’s identity under UK data protection law as worker’s personal health data is ‘special category’ data.  It is also important to think about what support you are going to offer the infected employee as they may be worried for themselves and people they have been in contact with as well as possibly feeling guilty for unknowingly transmitting the virus to others. 

Be there for your employees

For some of your employees, this is the longest time they have ever been away from an office or from their job. Therefore they may have very real concerns about their ability to remember or do tasks and this can really cause a lot of anxiety. It is important that as their employer you offer your help and assistance to them in terms of asking them what you can do to help them feel better about coming back.

Furlough leave has become a rapidly changing facet of employment law in recent months, and it is not only the legal implications that employers should consider but also these practical issues.  In addition to offering our employment law advice, Natasha Young, our External HR and Training Manager can assist with the HR side of any changes needed in a business.  You can contact Natasha to discuss your needs or the Employment Law team with any queries on 023 8071 7717 or email employment@warnergoodman.co.uk.  Alternatively, you may find the following articles of use:

• Can I base redundancy payments on furlough wages?
• Is a furloughed employee entitled to a statutory redundancy payment?
• How can I support the mental health of my employees as they return to work?
• What is flexible furlough?
• How do I calculate notice pay for an employee who has been on furlough leave?
• Can I force my employees to return from furlough leave?
• Furlough leave: update and actions employers need to take

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.