Returning workers from furlough

Category: Employment

We look at how to ensure everyone is protected, including the employer.

Finally, there are the shoots of hope that businesses, especially retail businesses, are staring on the road to recovery. Many have been shut since March and their staff have been furloughed, often at 80% of their normal pay.

Surely, then it will be dead easy to get going again? We will give the staff a ring, tell them to come on back and they will leave the glorious spring weather and return from furlough with a hop, skip and merry jump? Unfortunately, no. Preparing the work environment for a business to become operational safely again and arrangements for the return of staff are intimately linked.

Coronavirus Resource Hub

Risk assessment

Once you’ve completed the risk assessment, an employer needs to think about ways risks can be addressed. For example, reorganising
workspaces, photocopiers and drinks facilities to maintain social distancing; teams working on a rotational or shift basis; staggered start times to avoid mass entrance and exit to the building; providing parking; use of PPE; and lots of hand sanitiser.

If you require assistance with health and safety assessments or implementing their results, we recommend you speak to H&S Dept. They are specialists in making businesses COVID-19 secure.

Small Minority

Now, how does this link in with the merry staff skipping back through the door from furlough? Unfortunately, whilst the vast majority of staff
are itching to return to their jobs, there will be a small minority who have rather enjoyed furlough and would rather remain upon it and
who can use these health and safety requirements to their advantage.

An employee may, for example, decide that they are not returning to work because they claim they think that they will contract COVID19 at their workplace. Whilst the employer may consider leaving that individual on furlough for a quiet life, they may also take the view that this staff member is required back at work. An employer may, as a result, decide that they wish to dismiss this individual for a failure to attend work or not pay them for the days that they don’t attend; both approaches carry risk, but
they can significantly reduce that risk.

Legal 500

Reasonable Belief

The UK’s protection for employees from dismissal and detriment in Health and Safety cases is broad. An employee is protected from dismissal or detriment on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected
to avert that danger).

So, the question is “could an employee reasonably believe that the risk of contracting COVID-19 in the workforce was serious and imminent?” and the key word is “reasonably”.

There is, of course, no case law on this yet when it comes to the current pandemic; however, if a full risk assessment has been carried out, the
results shared and discussed with the staff and measures to mitigate any identified risks as far as possible are implemented and communicated to the staff, it will be much more difficult for an employee to say that they
“reasonably believed” that there was a “serious and imminent danger” of contracting COVID-19 for the purposes of bringing a successful claim
against their employer.

Protection for the employer

By putting in place clear risk assessments and protection measures which are shared with staff, employers will be able to appropriately and pro-actively manage their workforce’s return from furlough with a much-reduced risk of litigation along the way.

So, what should you be doing for the office environment? First off, employers need to complete a risk assessment of their workplace
and share the results of this with their employees, seeking feedback from them. If there is a health and safety representative, they should be consulted with as part of this process.

Employment

What next?

If you need assistance with anything that you’ve read, please don’t hesitate to contact our Employment team. You can reach them at [email protected] or by calling 01752 827081.