Q&ASep 9 2020

Bringing employees back from furlough

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Bringing employees back from furlough
Jason Alden / Bloomberg

Q. Can I force all my employees to return to work from furlough leave?

A. Some employers will not have to look too far to find an answer.

That is if they have expressly set out, in the furlough agreements, when their furloughed employees will return to work as well as if the feasibility of their return will be reviewed, and when.

This is the easiest way to determine, at first instance, the steps that can be taken if furloughed employees refuse to return to work.

If the return date being proposed had not been previously agreed with the employees, then forcing them to return could lead to a decline in staff retention or morale.

Employers should, therefore, consult with individuals on furlough to address when the company proposes they return, giving ample notice (ranging from a week to a day depending on the needs of the company), and discuss any issues the employee may have about returning.

These issues may well be quickly resolved by highlighting the measures being taken by the company to ensure that the workplace is Covid-19 secure, for example, implementing social distancing measures.

Where the employees’ reason for refusing to return to work is due to health concerns then employers can explore alternative working arrangements, such as: working from home if possible; a continued period of full furlough; flexible furlough to enable part-time working paid in full for hours worked and 80 per cent to a capped maximum rate of £2,500 a month until September for hours not worked; or enforcing the taking up of accrued annual leave or unpaid leave.

While taking the specific circumstances of the individual on furlough into consideration is essential, if furloughed employees still have reservations about returning to work after all is said and done – but they do not have any health conditions that are cause for concern – then employers can class this as a period of unauthorised absence.

In this case, employers can withhold pay since work will not be carried out, and furlough grants will no longer be claimed on the employees’ behalf.

Unauthorised absences can result in disciplinary action being taken against the employees who unreasonably refuse to return to work, or other necessary action in compliance with company policy – the likelihood of which should be made clear to employees in the interest of full disclosure.

Employers are reminded that, while employees may have to remain on furlough, they can take advantage of the government’s Job Retention Bonus, which can be claimed from February 2021 by employers who retain their furloughed staff. Employers can potentially receive a £1,000 bonus for retaining furloughed staff in meaningful employment.

In all, employers may enforce the return dates stipulated in furlough agreements.

Still, they should first find out the reason behind employees’ reluctance to return to work before doing so and should consider alternative options where possible. A similar approach should be adopted where furlough agreements are unclear about when an employee is expected to return to work, as highlighted above.

Peter Done is managing director of Peninsula