Coronavirus Job Retention Scheme FAQs for unfurloughing employees (reviewed 9 November 2020)
Below is a list of frequently asked questions about the Coronavirus Job Retention Scheme (CJRS) and unfurloughing employees.
When deciding to unfurlough employees, do be mindful of any lockdown rules applicable at the time, including but not limited to the requirement that employees work from home, if they are able to do so.
If we have a sudden upturn in business, can we call employees back to work?
Under the extended CJRS, which came into force from 1 November 2020 (and is expected to be in place until 31 March 2021), there is no minimum furlough period. However, employers must report and claim from HMRC for a minimum period of 7 consecutive calendar days.
If employees are required to come back to work before the end of a set period agreed for furlough, this may represent a change which needs to be agreed and/or consulted upon.
Do I need to give notice of a return to work?
It depends what was agreed when furlough was implemented and if any other contractual terms apply. We’d always recommend giving reasonable notice, which will vary depending on the circumstances. Giving a bit of notice will enable employees to raise any concerns they have prior to coming back, if they have any.
What do I need to do to document the end of furlough?
The guidance is silent on this point but the obvious thing to do is confirm the position in writing, setting out the return to normal pay and any other terms which apply.
If, however, you are bringing employees back on a part-time basis using the Flexible Furlough Scheme, you will need to document certain things.
I need my employees back but they are refusing to return to work. What should I do?
It depends on the reasons for their refusal. Some will have very genuine concerns or reasons as to why they cannot come back. They may have a terminally ill spouse at home, be caring for their children or have an illness which puts them in the extremely vulnerable category.
Whether you are requiring employees to work from home, or come into the workplace, will also be a relevant consideration.
Each situation will need to be considered on its merits to avoid discrimination claims. You would be wise to take advice before taking any action.
Can I bring back some employees and not others?
Yes, you can although you need to be careful to ensure that any selection criteria are not discriminatory. Please do not assume that person X won’t want to return and person Y will. You should also be mindful that just because you want someone back, they might not be prepared or able to return just yet. Each case needs to be handled very carefully.
I want to unfurlough an employee but they are in the extremely vulnerable category. What do I do?
You should speak to the employee and see what their position is. This will likely influence your decision. You have to be mindful of being discriminatory (most likely in relation to age, pregnancy or disability where furlough is concerned) but equally you are under a duty to ensure that you can provide a safe working environment.
Whilst you may be able to do this for some employees, those in special categories might require a higher standard to be achieved. You must be satisfied that it is safe for someone to return (whether that be working from home or in the workplace). Don’t forget the particular rule which applies to pregnant women requiring suspension on full pay in certain circumstances.
Take advice in these situations to ensure all the circumstances are taken into account.
If I bring people back from furlough and into the workplace, what do I need to do from a health and safety perspective?
Fundamentally you need to ensure that it is safe for employees to be in the workplace. You need to have in place a Covid-19 risk assessment, which is produced in conjunction with employees, and put in place as many health and safety measures as you can. Employers need to be thinking beyond hand sanitiser and facemasks. Every aspect of the business needs to be assessed from how staff get to work, move around the buildings, interact with people and so on. Remember that specific individuals will have higher needs and what might be sufficient for some staff might not be sufficient for others.
Once this has been done, a poster needs to be displayed as evidence of compliance.
Warning: this is not a tick box exercise!
As mentioned above, do be mindful of any lockdown rules applicable at the time, including but not limited to the requirement that employees work from home, if they are able to do so.
Can employees be asked to work different hours/split shifts when they return to work, to help with social distancing?
As with all changes to employment terms, it’s a question of consultation with staff. They may be prepared to agree to these sorts of measures and equally there may be reasons why it is not feasible. These sorts of issues frequently give rise to discrimination claims, often without employers realising it so please take specific advice on your circumstances. Broaching the question may be the first step to establishing whether a formal consultation is required.
I have a question about furloughing employees. Can you help?
See our blog for frequently asked questions about furloughing employees.
We are here to help
If you would like any advice on this or any other employment issue, please contact a member of the Employment Law Team.
This information is given to the best of our knowledge and does not constitute individual legal advice upon which you can rely. The situation relating to Covid-19 and the Government’s proposals are constantly evolving and may have changed since this document was produced. For up to date advice on your own situation and whether there are any other considerations relevant to your business, please contact us before taking any action.
Last updated 9 November 2020