Unfurloughing employees

Furlough

The Government have given significant amounts of guidance on how to furlough employees. There is however, yet to be any guidance provided on how to unfurlough employees and reinstate them back into employment. There has been a lot of speculation as to what the Government will next announce in terms of people returning to work and the help businesses might receive to do this successfully. It seems as though the return to work could be based around a mix of legislation and business owner’s judgement.

Many employers have begun to query what happens when it comes to bringing an employee’s period of furlough to an end otherwise known as being ‘unfurloughed’. Whilst the guidance refers to a minimum furlough period of 3 weeks it does not require a minimum ‘unfurlough’ period.

There may be different reasons as to why an employer may wish to bring an employee’s period of furlough to an end. This may be because other key members of staff have become ill or where workload for the business has significantly increased. It may be because the government scheme has ended, which at the moment it is due to in June which is not that far away.

Knowing how to unfurlough employees is important for employers as many businesses are adapting to the restrictions of lockdown and are still providing a service. Many businesses have thought of creative ways to keep their businesses running without opening the doors to the public. For example, where cafes and restaurants have decided to implement home deliveries. Other examples may include gyms that are now offering membership for at home workouts and schools that have chosen to make personal protective equipment for frontline staff.

If lockdown is extended for longer than anticipated, working this way may become more popular. This, in turn, means that employers may need to unfurlough their staff to ensure these needs can be met.

The more significant reason for needing to know how to unfurlough employees will become apparent when the Government bring the Coronavirus Job Retention Scheme to an end.

One big question for employers when furloughing will be whether they need to make anyone redundant, restructure the roles or ask people to do short time working.

How does an employer unfurlough an employee correctly?

There have been suggestions made that employers should unfurlough staff in the same way they would decide to lay them off (reducing the likelihood of a claim being made against them).

To do this, the process of deciding to lay an individual off would be considered but just with the opposite outcome.

If a company wishes to unfurlough all employees at the same time, then it is unlikely a claim can be made. However, if a company only wants to unfurlough particular employees, as with the process of laying off an employee, when being selective of who you would choose this should be based on an objective criterion. Using objective criteria will lessen the chance of discrimination becoming apparent in choosing to unfurlough or keep the employee on the scheme.

In choosing to unfurlough employees in a fair and objective way, it is suggested that employers create a plan of who and the reasoning behind the need to unfurlough those employees selected. This should be set out in writing to each affected employee. If the unfurlough is temporary, again stating why this is the case and how long this is likely to be for.

In selecting whether to unfurlough an employee, numerous factors should be taken into account. Here are some suggestions on how to select which employees are unfurloughed:

  • Take into account the length of time employees have been furloughed

It is recommended only to unfurlough those employees who have been on the scheme for more than 3 weeks. For employer to claim back 80% of an employee’s wages they must have been furloughed for at least 3 weeks. Therefore, if you choose to unfurlough someone too early you will not be reimbursed.

  • Check agreements made with employees regarding furlough

 It is advised that employers revisit the written agreement that was made with employees when they agreed to be furloughed. It is important to establish whether employees are entitled to any notice of when they are expected to return to work and if so, how much notice is required when unfurloughing.

  • Ask those employees who have expressed they would like to return to work

Unfurloughing employees over those who have expressed that they wished to return to work may be seen to be discriminatory (if they have a protected characteristic).

Without good reason for the need to unfurlough particular employees, this could be seen as unfair to those who may be struggling financially.

  • Base decisions on those employees with the skills required to undertake work

For example, for restaurants who wish to offer a delivery service, they would need to unfurlough their chefs but wouldn’t need to unfurlough their waitresses as there is still no one for them to serve.

It is important to be mindful of the circumstances of each employee. Regardless of skill, employees may now have extra responsibilities such as caring for children now schools are closed, or they may be deemed vulnerable to the virus. In these circumstances employees may express their wish to remain furloughed and other employees should be reconsidered as oppose to forcing individuals to work.

If employees are raising their concerns about being unfurloughed and returning to work, it is important you listen and try to work through them as far as practical. This will help to get the business back up and running and will show to your employees you are taking their safety and any corners about being unfurloughed seriously.

Can employees be refurloughed?

Employees can be furloughed numerous times. Therefore, if after unfurloughing an employee cover is no longer required or work levels drop, the employee could potentially be placed back on furlough providing agreement is made in writing again.

It is possible to rotate employees in and out of furlough to ensure all employees are treated fairly and given the same amount of opportunity. If you are considering doing so, it is important to make this clear to all employees that are involved and whether they agree to this.

When unfurloughing will they be coming back to the same job?

Many workplaces will significantly change after lockdown, due to diminished work and adapting to the new climate there will be a huge shift, but employers cannot simply force people into new roles. They must consult, especially where the terms are varied and where redundancy is likely.

Mental Health of the furloughed

One final consideration, furloughed staff can do training, (just ensure you pay them the national minimum wage if putting them on any training). Use this time to train them, it is the perfect time to do all that training that you have been meaning to do!

More importantly, you must reach out to employees whilst they are off and those home working. Communication is key to maintaining contact with your employees and colleagues, in particular keeping those on furlough updated on what’s going on. Conduct wellbeing risk assessments and offer support and training for their mental health. This is a worrying and uncertain time for everyone, looking after your staff when furloughed will make an easier transition back and you will be working with a workforce who feel like you care and who will be mentally more resilient to any proposed changes.

We can recommend a company who provide wellbeing risk assessments if you want to conduct these and we will be launching Thrive Wellbeing, offering training and support for furloughed and unfurloughed staff as well as those home working and working on the front line.

Unfurloughing employees and health and safety in the workplace

It is advised that employers take time to think through how they plan to unfurlough employees as not only the way in which employees will be chosen to be unfurloughed is important, but also ensuring that employees can be unfurloughed and return to the workplace safely is an important factor. The process of unfurloughing employees should be done over a matter of days, possibly weeks rather than just an overnight decision. A suggestion is that a business plan to get employees back into the workplace should be implemented in stages, for example a restaurant should consider how they could unfurlough their employees to provide customers with take-out options and then slowly, when Government guidance allows and  it is safe to do so, gradually build up to allow members of the public to dine in the restaurant itself. By doing this in stages it will mean more employees may be willing to be unfurloughed and return to work if they feel confident in the safety measures put in place.

If you are unsure about what concerns your employees may have about being unfurloughed, you could approach this from both an internal and external prospective.

  • Internal: a way of hearing about employees concerns about being unfurloughed and returning to work is through clear and regular communication between employee and employers. This can be done through skype meetings or though resources such as Yammer which allows businesses to communicate effectively.
  • External: social media is a tool which business can use to their advantage when hearing about concerns employees are having about being unfurloughed. This is because through using social media it allows employers to see what concerns their own employees are having and also employees of different companies to see how other businesses may be dealing with unfurloughing employees.

 If employees are unfurloughed, will the business be responsible for ensuring employees get tested?

Currently there is no mandate from the Government putting the responsibility on employers to ensure employees are tested once they return to work. However, it would be recommended that the business does consider whether testing would be reasonable in ensuring employees safety upon their return into the workplace.

Plans for restarting the economy

As the Scheme is only currently set up to run until the end of June, thoughts are starting to turn to how the scheme will need to evolve to support businesses as they consider reopening. It is likely that businesses will reopen in phase, restarting different sectors at different times.

The Confederation of British Industry (CBI) has suggested two possible measures that should be introduced to evolve the Job Retention Scheme:

  1. Increase the Scheme’s flexibility and enabling ‘partial furloughing’
  2. Introduce more conditions attached to the Scheme’s support ensuring that it can be gradually withdrawn as businesses start to reopen

The Government are expected to publish further guidance on how business across a range of working environments can begin to reopen safely. The guidance will also address measures aimed at children returning to school and supporting employees travelling to work.

In the coming days we will cover redundancy and consultation in another blog. If you have any specific questions as a business or employee, please contact our free advice line on coronavirus@thrivelaw.co.uk.

We hope this was helpful you can find other blogs here.

By Jodie Hill

Anything within this article should not be taken as legal advice. Any information provided will be general advice and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. If you wish to obtain specific advice to your situation and your decisions, please contact us and we will thereafter be able to advise.

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