This will be driven by the needs of the business. For example. You may not require the sales or marketing team to come back straight away as you are not looking for new customers. However, you do want your customer services team back as soon as possible to continue to look after your existing customers. Therefore, some will continue to be furloughed and others will return to work.
Having objective criteria included in your business planning will help you to make this decision, It is important to make decisions based on facts and be careful that you are not discriminating against anyone. You must have justification why some people are returning, and others are not.
Note: The minimum an employee can be furloughed is for 3 weeks so you must let this period lapse before bringing them back.
If you bring an employee back too soon, you can furlough your employees again if required. However, note there is an anti-abuse provision in the legislation, this is to protect employees against being used by the company as and when required. For example, you wouldn’t be able to bring an employee back for a couple of days then furlough them again and then bring them back and so on. Remember the reason the company put the employee on furlough in the first instance was because there was ‘no work’ for them to do.
Currently government guidance does not state how to notify a returning employee. We would recommend a written notification letter to the employee stating when you would like them to return to work, this could be counter signed by the employee to agree the change and then it should then be placed on their record.
If you no longer require a role, this would be classified as a potential redundancy situation. In order to begin consultation with the employee, you will need to bring the employee back to work and take them off being furloughed. During this period the employee with receive full pay and benefits whilst you proceed with the redundancy process.
As an employer you have a duty of care to your employees first and foremost. Therefore, if they have had a second job that is high risk such as an NHS volunteer etc, you need to plan with them how they will end that contract and start back with you. We would recommend completing a risk assessment to ascertain the extent of the risk and then make reasonable adjustments for their return to work. An example may be to work from home for the first 2 weeks before coming into the office, reducing the risk of COVID-19 under government guidance and self isolation.
If you have requested an employee to return from being furloughed but they refuse, due to childcare commitments, you have a couple of options. You could either approve the period of leave by using the employees accrued and untaken holiday entitlement or the employee may be able to take parental leave.
The ACAS guidance around this is very much about common sense, if you can work from home do so and employers should be as flexible as possible, such as flexible working during the day / evening working different hours to reducing pay and hours etc. Our recommendation would be to speak to the employee and find out what they feel they can and cannot commit to at work.
This may be a common concern among employees and as an employer you have a duty of care to your staff. You should discuss and identify the cause of concern with the employee, you may be able to offer them adjustments, such as working from home as required.
If possible, your employees could all work from home. Under government guidance this is the preferred method. Not all businesses are able to do this so ensure you have justification why you may enable some to work from home, but others may not get the option.
The reason for this justification is to ensure you are not discriminating against an employee. For example an employee may have anxiety or depression or another underlying disability which causes this anxiety, if this is the case, you will need to treat each case individually and on its own merits making adjustments to fit the circumstances. If you can objectively justify your actions, then you should not be discriminating against others.
If there is no potential for discrimination and public health advice is that the employee could reasonably be asked to continue to attend work, you could investigate the employee for misconduct for unauthorised absence. If the absence is unauthorised you can withhold pay. Please take advice before disciplinary action or dismissal as it could be classified automatically as unfair.
If the employee can work from home, then you may want to consider that option first.
The government guidance does not expressly require someone living in the same household as someone who is shielding to stop working.
If an employee cannot work from home, employers should react sensitively to genuine concerns and could consider allowing a period of unpaid leave without disciplinary action.
Discrimination laws do not protect the relative of a person with a protected characteristic, the law protects the employee if they had a protected characteristic (e.g – a disability that makes them vulnerable).
If you are unsure about what to do with any of the above, please seek advice and support from a professional HR Consultant or legal professional. Whether you would like support with your business during COVID-19 or you would like support in other areas, our HR Consultants are here to help you get it right, so get in touch.