It’s estimated that around eight million people are currently absent from work on furlough leave. Although the scheme will continue until the end of October, the Prime Minister has recently announced that we should try to return to work from August 1st if we can in order to try and return to some kind of normality. Does this mean that your employer can simply force you to return to work and do you have any rights as a furloughed employee?
Many furlough agreements set out when the period of leave will end, however, if this is not the case then the employer should provide the employee with reasonable notice. The starting point is that if an employee does not attend for work when requested to do so, they could face not receiving pay and/or disciplinary action.
A reasonable employer would be expected to consult properly with the employee about the reasons for non-attendance to try and find a solution. Furloughed employees retain their statutory and contractual employment rights, albeit that their terms are temporarily varied to place them on leave. Employees with two years’ service have the right not to be unfairly dismissed and all employees have the right not to be unlawfully discriminated against.
Some employees will understandably be reluctant to return to work for health reasons. Those categorised as high risk will want to avoid returning to a workplace for as long as possible. Employers should look at whether they can support those employees by making adjustments by the Equality Act 2010. Such an adjustment may be allowing the employee to work from home and/or to attend the workplace at less busy times, or simply continuing the furlough leave.
Employees who are absent due to caring for vulnerable relatives, or with childcare responsibilities may prefer to remain furloughed. If an employer attempts to force employees back to work in these circumstances, they may face claims of unlawful discrimination to an employment tribunal.
Employment law provides employees with the right to remove themselves from a workplace if there is “serious and imminent danger”. If an employee is dismissed after doing so, they may be able to claim unfair dismissal. If an employee feels that their employer is not properly adopting social distancing measures in the workplace, they can report them to the Health and Safety Executive and/or their local authority.
Where an employer is insistent on a return to work, it may be possible to delay this by making other arrangements. It is possible to use holiday or take a period of unpaid leave, or if there are concerns about something like travelling safely to work, different shifts might be accommodated. The employer is not obliged to agree to such requests, but it is advisable to try.
The government’s furlough scheme is due to end on 31 October 2020. It is hoped that the government’s recently announced employer incentives will mitigate the number of redundancies that are expected
— Chris Randall is the Head of Employment Law at Ringrose Law