UK:If you are currently receiving financial assistance for furloughed workers through the Coronavirus Job Retention Scheme (CJRS), you may be looking at the process of how to unfurlough staff. Below we set out some practical advice for employers on bringing furlough to an end and how to keep staff safe on their return to work.
What steps should be taken to unfurlough staff?
There are various reasons why you may be looking to take employees off furlough. This might be because you need temporary cover for anyone who has become ill or needs to self-isolate, or you have more work than you had initially predicted and need extra staff to cover any backlog. You may even be looking to implement a phased return in anticipation of resuming business as normal.
Regardless of the reason, you will first need to check the terms of any furlough agreement reached with staff prior to taking a temporary leave of absence, including what provision was made for bringing furlough to an end. Given that employers have been required to secure the written agreement of employees to be eligible to furlough them under the CJRS, many employers have put in place furlough agreements, setting out how the arrangement will work in practice.
Where the agreement provides for a specific notice period to be given before you can expect an employee to return to work, you will need to honour this period, unless further agreement can be reached to waive any notice. You will also need to ensure that you provide notice in writing where required.
Additionally, you should check any agreements you have in place with any trade union or employee representatives to see if you must formally consult. If there are any proposed changes that affect the written terms of someone’s contract, you must always consult with the individual or their representative.
Absent any written agreement as to how and when to unfurlough staff, you should still consult with employees about bringing furlough to an end where possible, considering their views and agreeing a convenient return date.
As a responsible employer you should be prepared to be flexible, even where furloughed workers were previously advised of the need to be ready to return to work at short notice, or even where required to do so under the terms of any furlough agreement. In many cases, you may need to provide sufficient time for staff to make any childcare or other arrangements to facilitate their return.
Can you unfurlough staff and later re-furlough?
If, after you take employees off furlough, the operational needs of your business change again, for example, work levels decrease or temporary cover is no longer needed, it remains open to you to re-furlough them. In some cases, employers have rotated their staff in and out of furlough as a means of making things fair.
Under the CJRS, the minimum length an employee can be furloughed for is 3 weeks. This means that a worker can be furloughed multiple times, making it possible to move a person in and out of furlough on a 3 weekly or longer basis.
If you are looking to unfurlough staff where they have been on a temporary leave of absence for less than 3 weeks, there is nothing to prohibit this. However, you will lose your entitlement to claim under the scheme for the time that they have been furloughed. In these instances, you may want to let the furlough continue until they have been absent from work for at least 3 weeks where possible.
Where you are looking to re-furlough a member of staff, any prior consent or written agreement to be furloughed will usually no longer apply and further agreement should be sought. This can be an updated version of the previous agreement, but should be re-signed and dated. Any further furlough period will need to be for a minimum of 3 weeks to enable you to claim under the CJRS.
It is important to bear in mind that you cannot partially furlough workers under the CJRS, even to carry out part-time work from home, although this is likely to soon change. However, for the time being, it is still a condition of the scheme that any worker for whom you are making a claim must not be undertaking any work for you, or any connected organisation, during the furlough period.
What is the timeline for bringing furlough to an end?
In due course, all businesses will be looking to bring their furloughed staff back to work, or to consider other options, once the CJRS comes to an end. This is only a temporary scheme, originally scheduled to finish at the end of June, although this has now been extended until the end of October 2020 to run in two phases:
- Phase 1, from now until 31 July: where furloughed workers will continue to receive 80% of their current salary, up to the cap of £2,500, as long as they do not undertake any work for their employer.
- Phase 2, from 1 August to 31 October: the scheme will become more flexible, where workers will continue to receive 80% of their salary subject to the cap, but will also be able to return to work part-time.
By implementing a phased transition back to work, this will allow employers to put in place safety measures to make the workplace as safe as possible. It will also mean that employers will share the burden of paying salaries with the government, although the percentage division of the grant between the government and employers during the second phase has not been confirmed.
Once the CJRS comes to an end you will need to make a decision, depending on your circumstances, as to whether your staff can return to their jobs. At this stage, you will no longer be eligible for any government grant to keep your staff on the payroll. If your business has been severely affected by the impact of coronavirus, it may be necessary to consider redundancies. In some cases, however, you may want to consider extending any period of temporary leave.
Each period of furlough can be extended by any amount of time whilst the worker is on furlough, although the CJRS end date is the last day that can be claimed for. This means that whilst you are not necessarily obliged to take employees off furlough, further agreement may need to be reached with your staff as to how any further leave of absence will work and what they will be paid.
What if someone refuses to return to work?
You may find that many furloughed employees are reluctant to return to work, either because they are concerned for their own health or that of people they are caring for who may be vulnerable or shielding.
If you are faced with a situation where you are bringing furlough to an end but employees are expressing a reluctance to return, you should look to ways to accommodate their concerns or practical needs. This could include allowing them to work from home or to take any unused annual leave entitlement.
A furloughed worker will continue to accrue their normal statutory annual leave entitlement during any period of furlough. That said, unless prior agreement has been reached to take additional time off, you do not have to consent to any further temporary leave of absence, either paid or unpaid.
If someone refuses to return to work without a valid reason, you may be able to take disciplinary action against that individual, although caution should be exercised as you risk reputational damage, and even legal action, if you fail to follow fair procedures. It is therefore always best to explore alternative options.
What steps should be taken to keep unfurloughed staff safe?
Even though the timing and nature of any further relaxation of restrictions by the UK government remains uncertain, all businesses should now start to consider their return to work plans, including a staged return to work post-July.
At the heart of any operational decisions should be how you propose to take care of your staff and safeguard their health and wellbeing. As an employer, you have a duty of care to ensure the health and safety of your staff. This includes their physical, mental and emotional wellbeing, where many will have understandable concerns about being in the workplace and travelling to work.
This means that if you are looking to take employees off furlough, you must take all reasonable steps to make your workplace safe and to control the coronavirus risks associated with running your business at this time.
How you manage a return to work will depend on the closure arrangements you are currently operating. Your business may not have been trading at all where everyone has been furloughed, or you may have been trading on a limited basis with some staff furloughed but essential staff still in work. In either case, any safety measures should include the following:
Completing a risk assessment to identify what might cause harm in the context of coronavirus and taking reasonable steps to prevent its’ spread, especially where staff are expected to work with or near other people, or you are increasing the number of staff in the workplace.
Consulting with staff in the steps you are taking by 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.
Involving staff in the steps you are taking to keep the workplace safe by listening to their concerns and exchanging ideas about how to manage the risk of coronavirus in the workplace.
Adopting flexible working measures, including allowing employees to work from home, or staggering shifts or start and finish times, to minimise social contact with others and avoid overcrowding.
Following the government guidelines on safer working, for example, by putting in place social distancing measures; imposing additional hygiene measures and hand-washing facilities; providing PPE including face masks, gloves and screens for work stations; arranging for a deep clean of any work spaces or communal areas; as well as providing extra car-parking spaces so staff can avoid using public transport where possible.
Where prior agreement has been reached to formally consult with any trade union or employee representatives before bringing furlough to an end, you may also need to involve health and safety representatives in your return to work plans. For further advice on working safely during the pandemic from the Health and Safety Executive visit: https://www.hse.gov.uk/news/coronavirus.htm
When to bring furlough to an end?
When making a decision to take employees off furlough and asking them to return to work, consider:
- Is it essential? – You should only consider bringing furlough to an end for those staff whose presence in the workplace is essential to the running of your business or are unable to work from home. Where an employee can work from home, they should be encouraged to do so.
- Is it sufficiently safe? – You have a duty of care to ensure the health, safety and wellbeing of your staff. This includes identifying and managing any risks to ensure that the workplace is safe for your staff to return to. By implementing a gradual return, this will enable you to test any measures in practice, ensuring these will work with larger numbers.
- Is it mutually agreed? – You must clearly communicate your intentions to unfurlough staff as soon as is reasonable practicable, consulting with them where possible, even where there is prior written agreement for immediate recall. This will allow you to address any staff concerns and accommodate any needs, being flexible wherever possible by way of additional time off work or the use of alternative working arrangements.
Employers should remember that the Chancellor has confirmed the CJRS will be coming to an end in October, with the level of financial support expected to be reduced in the lead up to the end of the scheme. By this point, employers will have to have made a decision on their furloughed workforce.
Need assistance?
DavidsonMorris’ employment lawyers can help with all aspects of workforce management and planning in response to the current crisis. Working closely with our specialists in HR, we provide comprehensive guidance on the options open to you as an employer when deciding the next phase for furloughed workers, whether that is how to unfurlough staff, 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.
How to Unfurlough Staff FAQs
Can we make furloughed workers redundant?
It may be possible to make furloughed employees redundant, provided the dismissal is fair and lawful and you have followed the required redundancy process.
Will furloughed employees be gaining continuous service while on furlough?
Furloughed workers’ employment contracts remain in place, meaning temporary cessations of work do not apply.
When can we unfurlough employees?
The rules of the CJRS state the minimum period of furlough is three weeks for a valid financial claim to be made.
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