Returning to Work from Furlough
Can an Employee Refuse to Return to Work? Can an Employer Force an Employee to Return?
The Government’s furlough scheme has been a huge success in keeping our workforce intact. At the time of writing (10th June, 2020) about 8.9 million workers have been furloughed since March, whilst at the end of May the Government detailed how the scheme would be wound down steadily by the end of October. However, there are a growing number of instances where people have demanded to be put on furlough, even if it is not justified, and others where people have refused to return from furlough to their normal duties citing “shielding” as the usual excuse. Which begs the questions: can an employee refuse to return to work and, can an employee force an employee to return to work?
We asked Malcolm Scott Walby, a partner specialising in company and commercial law in Poole based Scott Walby LLP Solicitors for his views on these tricky questions.
Some Employees Might be Using Furlough as an Extended Holiday
Lord Lawson, the former Chancellor of the Exchequer, amongst many other commentators, has forecast large numbers of redundancies, due to the country suffering a recession because of Covid-19 disruption. On the other hand, there is always a shortage of good staff and with the end of the Brexit transition period looming, this could be a serious issue in some sectors. However, as Malcolm suggests:
“A real problem is that unmotivated employees may be using furlough as an extended holiday and do not regard returning to work with any enthusiasm. This may translate into a refusal to work due to shielding members of the family or perhaps a claim that the workplace is unsafe.”
What Grounds do Employees Have for Refusal to Return to Work?
“Under the Employment Rights Act 1996 an employee can claim that the workplace is unsafe. It is up to the employer to prove that the working environment is genuinely safe i.e. it follows social distancing rules and provides PPE where necessary and hand cleaning/sanitising facilities as appropriate. Desks may be over 2m apart, but what about the toilet and the kitchen area? Is the door to the fridge cleaned after touching, for example? There is a lot for employees to do to make workplaces safe as lockdown eases and employees begin to return to work.
Employees have the right not to suffer a detriment if they claim that the working environment is unsafe. In other words, if you sacked someone or reduced their pay for refusing to work, whether with good grounds or not, if their fear is genuine, you could be held liable ultimately for unfair dismissal and certain standard awards.”
What rights lie with the employer?
“If, as an employer, you can show the working environment is safe, you can require an employee to return but you must be prepared to demonstrate beyond doubt that the working practices and environment are safe. If the employee objects to the environment, they still should be obliged to return to work and explain exactly with what they are unhappy. They cannot just sit at home and object without properly considering your practices and perhaps suggesting others for you to consider. It must be a positive procedure by both parties.”
Some Tips for Employers
Quite apart from the difficult economic and financial decisions that firms will have to make as lockdown eases, Malcolm suggests the following when it comes to furloughed workers and the return to work:
“Keep in touch – Employers have the obligation and right to keep in touch with employees during furlough, having established a method of communication, usually telephone or email. This means that they can consult regularly about their employees and what you want them to do, in terms of returning and the measures you have put in place to make it safe.”
“Monitor what they do – Facebook is still a great way to see what people are doing in their spare time. If they are serious about shielding and are suggesting this is why they cannot return to work, then should they be going on Picnics or tombstoning at Durdle Door, for example? There is nothing to stop you asking what an employee is doing with their time.”
“If, say, one parent is taking time off on furlough to allow the other parent to return to work, then you need to consider what action, if any, you want to take, as there is no right to take time off on that basis. Likewise, whilst on furlough, an employee cannot work for his/her employer, but they can work for other businesses. However, this does not mean they can refuse to return to work when you tell them to do so.”
“Disciplinary matters still apply regardless of furloughing. An employee is still subject to the disciplinary procedure, which would cover breach of contract and refusal to obey a direct instruction, if they refuse to return to work.”
Talk to us for Further Help and Advice
The return to work as lockdown eases and furloughing is phased out will be difficult and complex for employers and employees, both financially and legally, as Malcolm has shown in this article.
As insolvency practitioners and business turnaround specialists, we are working closely with many companies to help them make the right decisions over the next few months. With our contacts in the legal sector, we can put you in touch with solicitors such as Malcolm’s firm who can advise you about the legal aspects of the post furlough return to work. Simply contact us or call us on 01202 551193 for a Free initial chat.