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Refusal to return from furlough
Refusal to return from furlough
As lockdown eases and flexible furlough takes hold, we look at some possible difficult issues that could arise where staff are reluctant to return to work.
While it may be straightforward from your perspective, there could be issues raised by some of your employees that force you to think and act differently.
The fundamental point is that you, as the employer, determine when furlough leave ends (either permanently or temporarily because of flexible furlough). What happens if you ask an employee to return to work and they refuse?
There are likely to be a variety of reasons (some may say excuses) why staff want to remain at home (on 80% pay and without having to work), so the first step is to understand why someone is reluctant/refusing to return to work; below is a summary of the reasons we have seen to date:
1. Vulnerable / extremely vulnerable.
The rules differ for those who are “clinically vulnerable” and the “extremely vulnerable”.
Clinically vulnerable includes those who; have a long-term health condition (asthma, diabetes etc), a weakened immune system, are over 70, are pregnant or are seriously overweight. For those in this category, a return is not prevented but you should think seriously about protecting their health in any return to work and adopt strict social distancing measures.
Extremely vulnerable are those who have been told by their health service/doctor to ‘shield’ themselves because of an underlying health condition that makes them at higher risk of severe illness. For this group, they should stay at home for as long as they are advised to. If working from home is not possible, they can be furloughed (subject to the CJRS rules) or placed onto SSP. Currently, the Government is planning to relax rules for extremely vulnerable people from 1st August so they may then be able to return to work provided it is safe to do so.
If an employee is reluctant to return to work and is either vulnerable or extremely vulnerable, only those who are extremely vulnerable and have been told to shield are likely to qualify for sick leave/pay. Anyone who is clinically vulnerable should return to work, provided its safe to do so.
2. Sickness
If the employee is unwell and cannot return for this reason, then the usual sickness rules apply regarding notification and sick pay.
The only exception is if the sickness is COVID related (they or someone in their household have coronavirus or coronavirus symptoms) or they have been told to self-isolate by a Doctor, NHS 111 or the Gov’s test and trace service. If so, the absence should still be treated as sickness, but you can reclaim up to two weeks SSP.
3. H&S concerns
Some staff may be concerned about their general safety in returning to the office and/or want to know what steps/measures you have taken for their protection.
Raising H&S concerns (albeit only actual breaches, not worries about possible breaches) is a special category where anyone dismissed or treated less favourably afterwards has specific protection against dismissals and/or whistleblowing protection. If such concerns are raised, you should proceed with caution.
4. Childcare reasons
Although some children have returned to school, not all children are back. If your employee refuses to return to work because they have childcare issues, you can require them to take (unpaid) dependants leave. There are discrimination considerations to be aware of so you will, again, need to proceed with caution.
5. No real reason!
This is probably the most common scenario where, usually, the best excuse is that the employee claims to live with someone who is vulnerable. In short, provided you have taken the appropriate measures to make the workplace safe, simply living with someone who is vulnerable is probably insufficient for an employee to refuse to return to work.
If you end furlough leave and instruct an employee to return, and the employee refuses, the options are likely to be to agree unpaid leave or take discipline action for unauthorised absence. This is subject to the possible claims detailed below.
With a return to work, there will be many different situations, so trying to cover them all in this article is not possible. When dealing with concerns form your employees, special consideration should be given to:
• Possible discrimination
If someone is vulnerable and forced to return, they could well have a claim for discrimination; likely to be based on their disability or that they are pregnant.
Equally, if someone lives with another person who is disabled, your non-disabled employee can be covered by the Equality Act and claim discrimination by way of their association with the disabled person.
Discrimination can also creep into your selection of those who are required to return and those who are not.
• H&S
As stated above, if someone has raised H&S concerns regarding the return to work, this can give them protection against dismissal.
• Statutory Right
If an employee has previously complained about a pay reduction while on furlough leave, they too may have protection against any detriment or dismissal. Being paid in line with their contractual terms is required by law, so if they claim the furlough scheme was not agreed and they have unpaid wages, raising that fact with you means they are likely to have “asserted a statutory right”. Anyone who is subsequently dismissed for asserting a statutory right can claim automatic unfair dismissal.
• Illegal activity
There are lots of reports in the press regarding the furlough scheme being abused. If your employee has reported you for allegedly breaching the scheme; perhaps because they were required to work while on furlough leave, and you are aware of this, their report to HMRC is likely to amount to a protected disclosure (whistleblowing). If you then subject them to any detriment or dismissal as a result, they will be able to claim for such detrimental treatment or dismissal.
For all the above claims, it’s important to also be aware that there is no need for the employee to have two years’ service.
While the furlough scheme presented challenges since coming into effect, probably a bigger challenge will be managing the return to work.
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.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
30th June 2020. © Kilgannon & Partners LLP
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