If you are currently receiving financial assistance for furloughed workers through the Coronavirus Job Retention Scheme (CJRS), you may be looking at how to unfurlough staff in preparation for the return to work, and ahead of the scheme’s closure in October 2020.
The process of bringing workers back from furlough carries both legal and HR risks, which employers should take care to consider before proceeding. Below we set out some practical advice for employers on ending the furlough period and keeping staff safe on their return to work. Our employment lawyers are on hand to answer your questions about making changes to workers’ status under the furlough scheme, and on changes to claim entitlements during the phase-out period of the scheme.
What steps should be taken to unfurlough staff?
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. You should first then check the terms of any furlough agreement reached with staff prior to starting the period of furlough, including what provision was made for bringing furlough to an end.
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.
Without any written agreement as to how and when to unfurlough staff, you should take steps to consult with employees about bringing furlough to an end, considering their views and agreeing a convenient return date.
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.
What is the timeline for bringing furlough to an end?
The Chancellor has confirmed the CJRS will end on 31 October 2020, with the following changes to the scheme under a phased-out approach:
| July 2020 | August 2020 | September 2020 | October 2020 | |
| Government contribution | Employer NICs and pension contributions &
80% wages up to £2,500 |
80% wages up to £2,500 | 70% wages up to £2,187.50 | 60% wages up to £1,875 |
| Employer contribution | N/A | Employer NICs and pension contributions | Employer NICs and pension contributions &
10% wages up to £312.50 |
Employer NICs and pension contributions &
20% wages up to £625 |
It will also be possible to bring workers back using ‘flexible furlough’ from 1 July, details of which are expected to be released by the Government on 12 June.
Once the CJRS comes to an end, you will need to have made 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.
When to bring furlough to an end?
When making a decision to take employees off furlough and asking them to return to work, against the backdrop of the furlough scheme wind-down, you should also consider:
- Is it essential? – While the CJRS remains in place, 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.
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?
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:
Complete a COVID-19 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. Consider each member of staff on an individual basis. The pandemic has affected different people in different ways, and it will be important to ensure you understand any concerns of your employees, give proper consideration to these worries and appropriate action to address.
This could include adopting flexible working measures, including allowing employees to (continue to) work from home, or staggering shifts or start and finish times, to minimise social contact with others and avoid overcrowding. You may even also consider redeployment, if possible, of vulnerable or concerned workers to roles that do not require contact or attendance in the work environment.
It will be critical to follow the latest government and HSE 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.
Can you unfurlough staff and later re-furlough?
The last date on which you can furlough an employee and claim under the CJRS is 10 June.
Before this date, 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.
After 10 June, employers may consider adopting flexible furloughing for furloughed workers, details of which are yet to be published by the Chancellor.
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.
Last updated: 17 May 2020
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
