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Thursday, July 2, 2020
1 July is the day that the Flexible Furlough Scheme starts.
Those who have been on furlough and are going to remain on furlough do not require anything. Leave them alone.
To those you are intending to potentially return to work under the Flexible Furlough Scheme either part time or increasing hours or flexible hours then there needs to be a Flexible Furlough Agreement issued and preferably signed. The reason for this is that you are varying the original Furlough Agreement and the scheme itself has changed.
To bring people back to work there is no minimum notice period required. However, good practice would suggest anything up to a week to allow people to put their affairs in order.
Some may not wish to return to work because they are vulnerable or shielding vulnerable individuals. I would advise leaving them on furlough for now.
Others may have childcare issues. Whilst that is not technically the employer’s responsibility, it might be sensible to allow them to take paid holidays or authorised but unpaid leave to resolve those childcare issues. Alternatively, you could elect to leave them on furlough.
As to the rest, assuming you have put in place the appropriate workplace risk assessment, have consulted with staff and have published it on the website, then they should be given notice to return to work. If they do not, you may regard it as unauthorised absence and so unpaid.
Arguably, you can take matters further into the disciplinary process. However, be mindful of Section 100 Employment Rights Act 1996.
An employee who is dismissed shall be regarded as unfairly dismissed if in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he refused to return to his place of work. Such a dismissal has no length of service requirement and no cap to the compensation. Therefore if you are currently contemplating dismissal for not returning from furlough, take some legal advice rapidly.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
