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Life after furlough
Life after furlough
Planning for life after furlough
As the topic of conversation moves towards the lock-down easing, many businesses are beginning to plan for life after furlough. When doing so there are many considerations, some of which we look at below:
1. The office/place of work
When deciding to re-open your office/place of work there will be many issues to address which will mainly be around H&S; the safety of your staff and customers/clients.
If you decide to bring staff back to the workplace, the manner and way in which you do so will need very careful planning to ensure their safety. This will require you to adhere to the appropriate Government guidance in this regard (available here), including, that you follow the rules on social distancing, cleaning and carrying out a COVID-19 risk assessment.
Longer term, there may also be thought given to whether you need the office(s)/place of work. There are many benefits in having an environment where employees can share thoughts/ideas and collaborate with colleagues in person, but the recent imposition of ‘working from home’ may have highlighted that (home-schooling aside) it too has many benefits and can work well if managed properly.
As such, there may be a major strategic issue to resolve as to whether the office(s) is ultimately required or whether a different infrastructure could work; perhaps a smaller office that’s used more as a hot-desk.
2. Home working
As we have raised in another post (available here) there are practical issues for you to consider when managing your staff while they work from home. This includes, H&S, keeping in touch with your staff, productivity, GDPR and discrimination.
3. Wellbeing
Since lockdown began, there have been many posts and articles about ensuring you focus on your employees’ mental and physical wellbeing. This is a specialist topic, and one we’re not qualified to advise upon, but something to be considered when considering how and when to plan for a return to work.
4. Travel to work
If you require your employees to travel to a place of work then, as well as the office, their journey to work needs consideration. The Government has issued guidance on safer travelling, which covers more than just travel to work, but much of which will apply to those who need to travel to work, and is available here.
Face masks should be worn if travelling in public and public transport should be avoided where possible with walking, cycling or driving the preferred alternatives.
5. Extending furlough
Given the Government’s decision to extend the coronavirus job retention scheme until October 2020, it may mean more staff are stay on furlough leave for longer, especially where the scheme is now closed to new entrants. Any extension should be recorded in writing, as per the scheme rules. For example, if you originally told staff they would be on furlough until 31st May, this should be updated.
While on furlough leave, your staff can undertake training and voluntary work provided it does not mean they are not providing service to or generating income for you. This has generally been seen as a good opportunity to keep furloughed staff engaged while at home and unable to work for you.
Equally, your staff are able to accept a second job, provided its contractually allowed. You could consider allowing staff to take on a second job if you are not topping up their pay or they have been (or will be) on furlough for an extend period.
6. Ending furlough / ‘flexible furlough’
As lock-down restrictions are lifted and, a return to work becomes more likely, you may need to select staff to return to work and you should do so in a way that means you are not being unfair or discriminatory.
This is likely to mean taking account of those staff who are themselves disabled or vulnerable, or where someone in their household is vulnerable. The Equality Act covers not only staff who have a particular protected characteristic, for example they are ‘disabled’, but also those who ‘associate’ with your employees; most likely members of their family/household.
From 1st July 2020, ‘flexible furlough’ will come into force and more guidance is expected on this on 12th June. This should allow you to stagger a return to work as work levels build meaning that you should be able to increase your employees’ hours as work demands increase. For those days where employees remain furloughed, you can still claim reimbursement under the coronavirus job retention scheme.
7. Redundancy
Sadly, many businesses fear that work levels will not increase to pre-COVID levels and so are planning to restructure, which inevitably means there will be some redundancies. The main benefit of undertaking redundancies now is that employees can be consulted and serve their notice period while on furlough leave. The proper procedures will need to be followed to ensure your business is protected.
Their notice pay, being a contractual entitlement, should be paid based on their full salary, rather than any reduced furlough pay, but by allowing them to remain on furlough leave for this period means you should be able to reclaim 80%/£2,500 per month towards this cost (subject to changes to the job retention scheme rules).
As we have highlighted in earlier articles (available here - part I
and here- part II) you need to be alive to the possibility of triggering the collective redundancy rules and understand the implication of this for your business.
As ever, with redundancy, managing the communication to existing staff, especially where they may be disbursed and working from home is an important consideration and something to include as part of your process.
8. Holiday
Much like notice can be served on furlough leave, allowing you to recover some of the cost, so too can holiday. Like notice, holiday pay should be paid at the full salary rate. Please see here
our earlier article on this topic.
Notice needs to be served on the employee if you want them to take holiday while on furlough leave. This will help reduce this liability, where some of the cost can be recovered. The notice needs to be twice the length of the holiday you want them to take, so 10 days’ notice for 5 days holiday.
To save as much as possible, we also think that holiday can be taken during notice, so if an employee is being dismissed and serving their notice on furlough leave you can, at the same time as them serving notice, require them to take their outstanding holiday.
If you choose not to impose holiday in this way (as being stuck at home on lockdown isn’t really a ‘holiday’), then to avoid a build-up of holiday you can consider alternatives. This is likely to mean refusing holiday requests or imposing limitations when staff return to work, but if you do this you should also consider allowing staff to carry forward more holiday than usual to the next holiday year.
The other thing to bear in mind is that the government contribution is reducing and therefore, the earlier you require your staff to take holiday, the higher the contribution you will receive towards their pay under the CJRS.
9. Flexible working applications
You may find that if staff are required to return to work soon, and; their children are still off school, they are caring for family members or your staff don’t want to travel to their place of work, that you may receive flexible working requests.
With these, you can either require the employee to follow the formal process, or you may prefer to adopt a more relaxed approach. Either way you need to ensure you are consistent. With such requests, which might see an increased in popularity, it’s important to remember that under the formal
flexible working rules:
a) employees can only make 1 request in every 12 months. As such, if you want to limit the number of requests, you can force staff to submit formal applications. While this will not alleviate you from dealing with their first one, it may prevent (or at least delay) future requests.
b) any agreed changes become ‘permanent’. Therefore, if your staff just want some short-term flexibility, forcing a formal request, which if agreed sees a permanent change, could again be used as a deterrent. Alternatively, if both parties are happy to agree a temporary change or you are happy to agree to the request but only on a temporary basis, it is possible to agree the request on a trial or fixed period basis.
c) there are eight, fairly broad, business related reasons as to why you can refuse the request. Provided these are used (and the process is followed), there is generally very little an employee can do should you reject the request.
That said, you may want to have the benefit of flexibility from your staff, particularly, as flexible furlough is now an option and the best way to secure this might be willingness to offer flexibility in return perhaps by explaining that; multiple requests can be made and/or short-term/temporary requests will be considered.
10. Changing T’s and C’s
Looking beyond furlough and ensuring your business is protected, you should consider your contracts and policies. Are these still fit for purpose and relevant? If you decide to allow/embrace more home working then this will raise considerations for the contract of employment, and you may want to build in the right to impose furlough leave in future, although we seriously hope there will be no second wave!
Conclusion
How you treat (and look after) your staff during lockdown and, especially, coming out of lockdown, will reflect on you and your organisation. It presents a golden opportunity to shine and show your staff how much you care about them and their welfare. Equally, get it wrong and it may be enough to encourage staff to lose trust in you and leave.
If any of the issues discussed above are a concern to you, or if you would like specific advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk
or on 01483 388 901.
12th June 2020. © Kilgannon & Partners LLP
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