With the recent relaxation of the lockdown rules, an increasing number of businesses are beginning to re-open in the UK, meaning that for employees who have been furloughed under the government’s Coronavirus Job Retention Scheme, their temporary leave of absence will soon be coming to an end.
As employers respond to changes to the furlough scheme, many are now moving to bring their furloughed employees back to work. Employers may find staff have concerns for their health and safety if they are required to return to the workplace. In some cases, employees may even refuse to return from furlough.
The following guide looks at the options for employers if faced with employees who are reluctant or even refusing to come back to work from furlough, together with some practical tips on how to safely re-introduce your employees back into the workplace to avoid issues with safety concerns.
Understand the reasons for refusal to return to work
Employers should conduct a COVID-19 risk assessment as part of their return to work plans. This assessment should include consultation with staff to ascertain any specific concerns they may have about coming back into the workplace or particular risks that may be relevant, such as if they are shielding under medical advice or are caring for vulnerable relatives.
Can you discipline an employee refusing to return from furlough?
Unless an employee has a valid reason not to do so, they remain contractually bound to resume their previous roles within their normal place of work – albeit on reasonable notice.
A written furlough agreement should be in place, setting out how the period of furlough was intended to work in practice including, for example, any notice period required to bring furlough to an end.
This means that if an employee refuses to return to work, you may be able to take disciplinary action against that individual, either on the basis of their failure to follow a reasonable instruction or for their unauthorised absence from work. However, prior to instigating any disciplinary proceedings, you should first take steps to investigate the reasons for the individual’s refusal to return to work, as their concerns may be reasonable in the circumstances. This could include, for example, an employee who has been advised to self-isolate or is living with someone who is shielding.
Where it is unsafe for an employee to return to the workplace because they have reasonable concerns about their health and safety, such as being vulnerable to becoming seriously ill if they contract coronavirus, or if someone they live with is clinically vulnerable, then it is likely to be deemed unfair to discipline them because of this.
In such circumstances, employers should look at alternative solutions such as allowing the individual to work from home if possible, and possibly changing their duties to facilitate this. Any change to employment terms should be approached with caution, and professional advice is recommended to avoid potential issues when varying employment contracts.
Where there no reasonable grounds are given, it may be possible to pursue disciplinary action. In doing so, it will be important to follow a fair disciplinary process, adopting a consistent approach for all absent employees, whilst still taking into account any individual factors that might mitigate the seriousness of any refusal to return.
Can you dismiss an employee refusing to return from furlough?
Having investigated the reasons for any unauthorised absence from work, and where there is no acceptable explanation for an employee refusing to return from furlough, dismissal may be considered an appropriate disciplinary sanction following a fair disciplinary process.
The context of an employee refusing to return from furlough must be closely considered before any decision to dismiss is taken.
In many cases, a series of written warnings may be more appropriate than immediate dismissal, especially given that many members of staff will still have legitimate concerns about the ongoing risk of coronavirus.
What are the legal risks for employers of getting this wrong?
As with any decision to dismiss, you must have a valid reason to do so and follow a fair process, otherwise run the risk of being exposed to a claim for unfair dismissal before an employment tribunal. You may even find yourself facing a claim for constructive dismissal where disciplinary action has been taken against an employee refusing to return from furlough – action that is arguably unfair in the context of their particular circumstances – causing them to forcibly resign.
In some cases, taking any form of disciplinary action, for example, against a pregnant employee or someone with a long-term medical condition that makes them vulnerable to coronavirus could amount to unlawful discrimination.
It is also worth noting that the law affords special protection to employees who are dismissed for drawing their employer’s attention to health and safety issues about their workplace – where any other disciplinary action taken against an employee for the same reason(s) could amount to an unlawful detriment.
This means that a dismissal could be classed as automatically unfair, or any other disciplinary sanction as an unlawful detriment, where an employee refuses to attend work due to a reasonable belief that they, or even someone they are living with, is at risk of serious and imminent danger of contracting coronavirus.
This could easily arise, for example, where an employee has raised concerns about the lack of health and safety measures within the workplace and you have failed to take sufficient steps to facilitate social distancing or otherwise reduce the risks of the coronavirus. An employee would only need to show that their belief of serious and imminent danger was reasonable and that their refusal to return to work was to protect themselves or others from danger.
To claim for automatically unfair dismissal or unlawful detriment there is no qualifying service period, such that employees with less than two years’ service could have a viable claim against you in these circumstances. This could result in a costly award of uncapped damages, together with significant reputational damage to both your employer brand and your business.
It is therefore best to consider any alternative options before deciding to instigate disciplinary proceedings or impose any form of disciplinary sanction in the context of the current pandemic.
What alternative options should be considered?
As a responsible employer, you should be open to exploring alternative working options for any employee refusing to return from furlough, especially where they have raised legitimate concerns about their health or the health of others.
For vulnerable employees or for anyone living with someone who still needs to be shielding, they should be allowed to work from home remotely where at all possible, otherwise you may need to agree to a further period of leave. This could either be in the form of continued furlough or by agreeing to a period of unpaid leave. You could also allow an employee to use any unused holiday entitlement.
For any other employee refusing to return from furlough, including anyone not classed as clinically vulnerable but with legitimate concerns about contracting coronavirus, it is still advisable to explore any alternative working arrangements, including working remotely.
Where an employee can work from home, they should be encouraged to do so. By way of alternative, you could adopt other flexible working measures, such as staggered shifts to minimise social contact or to avoid employees travelling at peak times, as well as the provision of additional parking spaces so that staff can avoid using public transport on their commute to work.
How should employers be preparing for return to work?
Where staff are required to return to the workplace, you must have regard to your duty of care to ensure, as far as reasonably practicable, the health, safety and welfare of all your employees. As such, you must safeguard both the physical health and mental wellbeing of your workforce, where many employees will have understandable concerns about being around others and travelling to work.
This means that if you are looking to bring employees back to work, you must take all reasonable steps to make your workplace safe and to control the risk of contracting coronavirus associated with running your business at this time. This should involve a numbers of steps, from completing a risk assessment to implementing appropriate social distancing and other forms of safety measures.
Consulting with your staff at this time, and clearly communicating what steps you have taken to protect their health and safety, will help to ease any concerns about the risk of coronavirus. This should include sharing the results of your risk assessment, explaining the changes you are planning to work safely, and how health and safety will be reviewed and managed on an ongoing basis.
You may even want to involve your staff in the steps you are taking to keep the workplace safe. This can be done by listening to their concerns and exchanging ideas about how to manage the risk of coronavirus in the workplace.
In most cases, any employee refusing to return from furlough will simply need some reassurance that their working environment will be safe, and any safety risks have been minimised in accordance with the latest government guidelines.
Tips on how to handle an employee refusing to return from furlough
The following practical tips for employers can help to avoid an employee refusing to return from furlough:
- Consult with individual members of staff about their return to work to identify any practical or emotional concerns and to discuss potential options available to them. In this way you may be able to agree a way forward, so as to avoid any disciplinary or dismissal proceedings.
- Be prepared to be flexible about working arrangements, where working remotely should still be encouraged where at all possible. You could also consider staggered shifts to minimise social contact at work or to avoid travelling at peak times. The provision of additional car parking spaces will also help staff to avoid using public transport on their commute.
- Be prepared to consider flexible furloughing, where employees will be able to work part-time under the Coronavirus Job Retention Scheme as from 1 July 2020. In this way, not all employees will need to be back in the workplace at the same time. For employees with legitimate health concerns, you may need to agree to an additional period of furlough.
- Be prepared to be flexible about any return date. The period of notice to bring furlough to an end may be set out in any written furlough agreement, otherwise you should provide at least 48 hours notice so that employees can raise any concerns with you. For employees with childcare commitments, they may need extra time to make suitable arrangements.
- Explain to your staff what steps have been taken to make the workplace safe and to control the risk of coronavirus. This should include discussing the results of your risk assessment, listening to employees’ concerns and even exchanging ideas about how to manage the ongoing health risks.
- In cases where an employee refusing to return from furlough cannot be resolved by way of mutual agreement, any disciplinary action taken against them must be conducted fairly. The employee must be given a suitable opportunity to state their case and explain their position, where this may need to be done remotely, together with the right of appeal.
Always bear in mind that each case will turn on its own facts, where there is no hard and fast rule as to whether or not disciplinary action or dismissal can be justified. By seeking expert legal advice prior to making any decision to discipline or dismiss an employee, this can help you to make an informed choice and ensure that you follow a fair process and avoid legal risk.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management and planning in response to the current crisis, including how to handle unfurloughing workers and deal with staff reluctant or refusing to return to work. Working closely with our specialists in HR, we provide comprehensive guidance on the options open to you as an employer when moving your employees through the stages of unfurloughing, or if you are having to consider redundancy or alternative working arrangements such as short-time working. For help and advice, speak to our experts.
Refusal to return to work from furlough FAQs
Can you force an employee to return to work after furlough?
An employee is contractually obliged to return to work following furlough, although any dismissal or disciplinary action taken against an employee with legitimate health and safety concerns could potentially amount to unfair dismissal, an unlawful detriment or even unlawful discrimination.
How long can you furlough an employee for?
Employers can furlough their staff for the duration of the Coronavirus Job Retention Scheme (CJRS), set to run until the end of October, although flexible furloughing where employees can come back to work part-time will be allowed from the beginning of July. The CJRS will close to new entrants from 30 June, but there must be a full three-week furlough period completed before then.
What if an employee says they are too scared to return to work?
If an employee explains that they are too scared to return to work, this is not in itself sufficient reason to refuse to come back, but as a responsible employer you will need to take steps not only to ensure their health and safety at work, but also to reassure them of the measures that you have taken to protect them.
Last updated: 19 June 2020