Returning to work after furlough and other periods of absence - Q&A

Many businesses will be starting to think about what steps they need to take when they intend to bring back any of their staff who have been furloughed, or who have been away from the workplace for other reasons such as childcare matters or because they were self-isolating or shielding.










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You can find further information below on some of the questions you may have. As this is an ever-changing situation, please always refer back to this Q&A for the latest information.


For further advice, NFU Employment Service members can contact our Employment Specialists on 0370 840 0234.

Guidance and information is changing regularly, contacting our Legal Helpline will ensure that you are receiving advice on the current legal and best practice position.
 

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How and when you take your employees off furlough leave is going to depend on your own circumstances. For some employers, all of their staff will have been furloughed, for others it may only be a small number of employees. Some employers may require all of their furloughed workers to return to work at the same time, but some may not need all of the staff to return at once. Some employees will be required to return to work at any point whilst the CJRS is live or when it ends but for others there may still be little or no work available for them.

Currently, there is no official guidance on how to unfurlough an employee or what should happen at the end of a furlough period. It is therefore advisable that you refer back to this guidance when you decide to unfurlough (including if you flexibly furlough)any of your employees for the most up to date advice, as circumstances may change.

When the time is right for you to bring any of your furloughed workers back to the workplace, you will need to contact your employees to discuss your intentions. As part of the furlough process you should have confirmed in writing to your employee/s that they were furloughed and you may already have confirmed the arrangements for their return to work.

Government guidance has not stated there needs to be any minimum period of notice to end a period of furlough. However, where possible try to give reasonable notice of the need to return to work and it would be good practice to give reassurance of the steps you have taken to make the workplace as safe as possible for them and what measures will be in place when they return. This will apply equally to employees away from the workplace for other reasons but who are now required to return to the workplace.  For further information see: ‘What should I do before an employee is expected to return to work?’

When a furlough period has ended, for whatever reasons, employees returning to work are entitled to return to the same job as before their furlough leave, with the same terms and conditions in place, including their full wage.

From 1 July 2020, employers will be able to furlough employees on a more flexible basis, including part time furlough. Please see our separate guidance on Furlough Leave and the Coronavirus Job Retention Scheme .

When an employee is due to return from furlough and you are unable to offer the same terms and conditions or the same work as before furlough, please contact the Helpline for further advice.

If you are contemplating any redundancies for all or any of your staff, please see: ‘Can I make my employees redundant after the CJRS has ended?’

Acas have template letters available on their website for employers to use to extend or end a period of furlough.

On 8 July 2020, the Chancellor announced the introduction of the Job Retention Bonus as part of his ‘Plans for Jobs’.

This is a one-off payment of £1,000 to employers that have used the Coronavirus Job Retention Scheme (CJRS) for each furloughed employee who remains continuously employed until 31‌‌‌ ‌January 2021.

To be eligible, employees will need to:

  • earn at least £520 per month (above the Lower Earnings Limit) on average for November 2020, December 2020 and January 2021
  • have been furloughed by you at any point and legitimately claimed for under the Coronavirus Job Retention Scheme
  • have been continuously employed by you up until at least 31‌‌‌ ‌January 2021.

Employers will be able to claim the bonus from February 2021 once accurate RTI data to 31‌‌‌ ‌January has been received. More information about this scheme is  available here and full guidance will be published by the end of September.

As always, the workplace needs to be clean but special attention will be needed if the premises have been closed, a deep clean may be necessary. Facilities should be available for hand washing with soap and water supplies and hand sanitiser where necessary. Employers should ensure that employees are able to take the time needed to wash their hands and reminders should be issued about the importance of this.

On 11 May 2020 the government announced further ‘COVID-19 secure’ guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible. The Welsh government have produced their own separate guidance for keeping ‘Wales safe at work’. Please see further on for more detail on this.

The new guidance continues to be updated and now covers at least 14 different workplace settings which are allowed to be open, from outdoor environments and construction sites to factories and takeaways.

A downloadable notice is available for employers to display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance. The notice has been updated from the earlier version to reflect the changes made to the 2m distance rule in England. In view of this change this notice now applies to England only. For workplaces in Wales, a copy of the applicable notice can be found within the sector specific Guidance issued by the Welsh Government. More details on this can be found below.   

Employers are advised to look at the guidance which is specific to the nature of their business, and in some cases more than one set of guidance should be referred to where there is an overlap of the nature of the business. All versions of the guidance can be found here.

On 23 June 2020, it was announced that from 4 July 2020 further measures will take affect in England only, to ease the lockdown and social distancing restrictions. The Prime Minister set out that where it is not possible to stay two metres apart, guidance will allow people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission. These measures will be kept under review.

Previously there was ‘5 Steps to working safely’ to supplement the guidance but this was withdrawn on 9 September 2020.

It should also be noted that in Wales, the government have decided to introduce a legal duty with regard to social distancing which will apply to any workplace, including homes, where work and repairs are being undertaken and outdoor spaces.  The announcement made on 23 June by the Prime Minister only applies to England and therefore does not change anything in Wales. These regulations in Wales mean that all businesses will have to take all reasonable measures to ensure the 2 metre rule is maintained between people on their premises whenever work is being carried out. The guidance on this also recognises that there are some workplace settings in which this distance may not be possible to maintain all of the time and in this situation, it makes clear that other measures should be considered e.g. minimising levels of interaction; physical barriers, improved hygiene, hygiene reminders, hand washing after close contact with others and ensuring those with symptoms are not present on the premises. Enforcement where all reasonable measures have not been taken will either entail a fixed penalty of £60 (this reduces to £30 if paid within 14 days but is doubled to £120 for a second a subsequent breach) or if charged and convicted, payment of a fine. The Welsh Government also have their own advice for businesses in Wales, including sector specific guidance, all of which can be found here: https://gov.wales/business-and-employers-coronavirus

The Welsh government have also introduced a 5 step key principles for workplaces in Wales, summarised below.

1. Care: Our health and well-being comes first

Everyone should approach the health, safety and well-being of each other in the workplace through this emergency with compassion and understanding.  Employers should look after their employees’ psychological and physical well-being. Employers can focus on reducing sources of stress for the workforce, both in terms of health anxiety and workload issues; with clear communications and assurance on the management of coronavirus (Covid-19) risk.

For those that cannot work from home, it is important for employers to establish an initial assessment on whether it is safe for staff to work and where relevant, signpost them to appropriate support organisations.

Employers should take extra care to safeguard vulnerable employees. They should record who is vulnerable and who has received a letter requiring them to shield.

2. Comply: The laws which keep us safe must be obeyed

Employers must continue to fulfil their legal duties under new and existing health and safety laws to maintain and protect the physical and mental health, safety and welfare of their employees and customers and visitors to their premises.

Where they cannot provide a safe working environment during the current emergency, they must determine what steps are needed to create one. If the employer still cannot provide a safe working environment, they must cease operations and if necessary, furlough staff.

Employees also have a legal responsibility to their employer and each other to follow instructions concerning safe working practices.

3. Involve: We all share the responsibility for safe work

Employers are required by law to protect their employees, and others, from harm. Employees also have a duty of care of their own safety and those of others. This is a shared responsibility.

Employers should maintain regular and meaningful engagement with their employees and with the recognised trade union or, if there isn’t one, a representative chosen by workers (including their health and safety committee, if this exists) during the coronavirus emergency.

4. Adapt: We will all need to change how we work

The consultation between employers and employees will help to identify the essential hygiene protocols, equipment and measures needed to keep the workplace safe from coronavirus (Covid-19) and limit its transmission. All work places are different, but there is a growing body of industry specific guidance and examples of good practice from work places which have not closed, available to draw upon.

Taking all reasonable measures to ensure that two metres distance is kept between all people in the workplace combined with robust hygiene measures is the aim.

5. Communicate: We must all understand what to do

It is essential that there is clear, precise and constant communication between employers, employees and other visitors to the workplace, about the reasonable and proportionate actions taken regarding workplace safety. It is important that everyone gets the same message and same instruction. Employers should ensure that communications are accessible for all staff.

Employees will need assurance before their return to work to that the employer is aware of any particular needs they have. All employees will need to be confident that the safety and well-being of the workforce and visitors is a key priority.

Safety messages should be circulated regularly to all employees using an agreed method which is accessible to all.  Posters and prominent visual aids and notices in the workplace will help reinforce these safety messages.

Since restrictions on the national lockdown have started to be lifted, there is still a risk of local restrictions, so it is essential that regular checks are made to establish if there are any local restrictions applicable to you. Details of affected areas can be found here.

In all settings and locations, where necessary ensure that staff have any appropriate PPE needed to do their job safely and are also properly trained to use it.

When any employees are back in the workplace its important that they know what to do if they become unwell or suspect that they or members of their household have symptoms of coronavirus. Employers, managers and employees should continue to be vigilant and know what sort of things they should look out for in case people show symptoms.

Measures you can consider adopting to keep employees safe in the workplace:

  • Keeping certain teams together and keeping teams small where possible.
  • Staggering start/finish/breaks times to avoid large groups and encourage social distancing.
  • Working from home may still be an option for some in order to keep the number of people in the workplace to a minimum.
  • Signs in the workplace to remind staff about social distancing and handwashing. Where possible, floor markers can be useful to show what 2 metres looks like (or 1 metre where appropriate).
  • If you have visitors, customers or any other third parties coming to your workplace, make sure that there is clear instruction for these people about what steps you are taking and what you expect them to do when visiting your premises to keep themselves and your staff safe.
  • A trial period, especially where you are adopting any new measures in the workplace. If there is any trial, workers should be made aware of this and kept informed.
  • Remind employees about their eligibility for a coronavirus test and how to get tested. For information on this please see ‘Are my workers and I entitled to be tested for coronavirus?’ and ‘Can I arrange for my own testing of employees?’ in our separate coronavirus Q&A.
  • Remember there are not just physical risks to employees’ health, their mental health can be affected too, so consider what support you are able to offer. ACAS have guidance on coronavirus and mental health at work.

More detail on these matters above is available in our separate ‘COVID-19 Secure – What you need to know’ Q&As.

There is likely to be further guidance and/or changes to guidance on safe working practices, so it is important that you keep what steps you have taken under review and be prepared to change any measures in response to any announced changes. It is also recommended that you document all steps taken.

In the same way that employers needed to decide fairly who they selected for furlough, they will also need to fairly select who is required to return to work. In some cases the decision will be automatically made due to the nature of the work and who is able to do it. Where a decision needs to be made, employers may want to consider the following:

  • Are there any furloughed employees who have not yet completed the minimum period of 3 weeks? If so, employers may prefer to keep these on furlough for a longer period so that they may submit a claim for their furlough wage to the CJRS. This may not be possible if it leaves an employer without employees who have the necessary skills needed to do the work in the meantime.
  • Are any employees willing to volunteer to return to work? Employers should be clear when asking for volunteers that they are not obliged to accept them if it doesn’t genuinely suit the needs of the business.
  • Have some employees been on furlough longer than others? An employer may want to consider bringing those back who have been on furlough the longest.
  • Could flexible furlough be used?
  • Are any employees still shielding or having to stay at home due to child care issues?
  • What criteria was used to select employees to be furloughed? Can it be used again?

Where the above points don’t apply to an employer in making their decision then they should adopt an approach similar to when selecting people for redundancy i.e. a scoring system based on skills, experience and issues relevant to the job and the workplace. This can be a time-consuming process and therefore employers may want to start thinking now, about what arrangements are to be put in place for bringing furloughed employees back.

Whatever decision is made, an employer will need to be able to prove that it was a fair decision and not discriminatory if challenged.

Government guidance is for everybody to stay alert and to limit social contact with other people by social distancing, unless it is necessary to go out for specific reasons, for example going to work where it is not possible to work from home, or in accordance with the permitted activities as part of the Government’s recovery strategy. The Government continues to ease restrictions and update its guidance as part of its roadmap. Now the Government is encouraging businesses to re-open where they have previously chosen to close, when businesses decide to or are allowed to reopen, communication with their workers will be key. From 1 August 2020 the work from home guidance changed and employers now have more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.

Some employees may still be shielding as per NHS guidelines and you should accommodate this where possible. Please see ‘What is shielding’ in our coronavirus Q&A.

Other employees may still have childcare issues where the schools continue to be closed, or other childcare facilities are no longer available. This would be covered by the emergency time off for dependants leave where employees can take a reasonable period of unpaid leave to deal with an emergency such as this. Employers should think about what longer term options are available for employees such as home working, flexible working, annual leave or authorised unpaid leave.

If you have employees who are worried about catching coronavirus from others in the workplace, you should listen carefully to their concerns and try to reassure them with the steps you are taking to make and keep the workplace safe, showing that you are doing all that you reasonably can to allow for social distancing and safe working. Where home working or flexible working is not possible, you may consider annual leave or unpaid leave where this is available. 

If you have ended their period of furlough and you need the employee to return to work but they unreasonably refuse to attend work and they are not displaying any symptoms or have not been advised to self-isolate, and there are no other suitable alternative arrangements, it may be possible to take disciplinary action. The underlying message from government guidance is for employers to adopt a reasonable approach and that workers should not be forced into an unsafe workplace. As such; invoking a disciplinary process should be a last resort and only where all other options have been genuinely and fully considered. Where an employee is dismissed or suffers any detriment for any steps or action they have taken (such as a refusal to work) based on their genuine belief that doing so would have left them or put them in serious and imminent danger, the employee would be entitled to make an employment tribunal claim. There is no minimum length of service needed for such a claim. It is important that you contact the HELPLINE for advice on this approach before taking any action.

If the furlough period has ended and the employee refuses to return to work where there is work available, there will be no obligation to pay the employee for this period of time, as their absence would be unauthorised.

An employee may ask to remain on furlough leave but they have no right to insist on this. Although an employer needs the consent of an employee to place them on furlough, they do not need the employee’s consent to take them off furlough leave. You should ensure that clear instruction or notice has been given for any furlough leave period to end.

If your employee is not well, coronavirus related or not, then you should continue to follow your normal sick leave and sick pay arrangements. If your employee has been advised to self-isolate, please see ‘What do I do and what should I pay if an employee is advised to self-isolate?’ in our coronavirus Q&A.

It would be best practice to do this with returning employees and where possible to have a one to one meeting, so that matters can be discussed in confidence if needed.

Some employers may choose to run refresher training or something similar if they have had to change how the business operates in response to the pandemic. In many cases, this may be more suited to a group session. This will be possible so long as it is held in accordance with social distancing guidelines.

As part of the return to work process employees should be reminded about the safety measures in place and that a failure to comply with them could be seen as a breach of a reasonable and lawful instruction, which could then lead to disciplinary action. Please see ‘What should I do to ensure my employees follow the guidance on keeping safe at work and what steps can I take if they don’t comply?’ for more detail on this.

Where possible you should continue to communicate with your employees and ask for their thoughts and opinion on how they feel the return to work is going and how successful the measures put in place are.

It is not compulsory or specifically recommended for employers to conduct temperature checks for any employees attending the workplace. Some employers may choose to undertake this before letting employees back in to the workplace. However, employees cannot be forced to have their temperature taken, unless there is an obligation in their contract of employment. Some employers may try to assert that having a temperature check is a reasonable instruction from a health and safety perspective but this could be challenged.

It is advisable to explain to your employees why you propose to introduce temperature checks, how they will be carried out, what will happen if a high temperature is recorded and reassuring them about how the information gathered will be stored and processed.  It is more likely that your employees will be willing to agree to the checks if you have shown transparency in terms of your reasons etc. You must also ensure that you are using reliable equipment to measure temperature.

Where an employee refuses to have their temperature taken, an employer will need to consider what steps they take next. If this means sending the employee home it may need to be on full pay unless an employer can show it was an unreasonable refusal by the employee, in which case they may want to send the employee home without pay. Try to establish if there is a reason why the employee will not consent to the temperature check and consider what may be done to change their mind.

If you wish for your employee to be tested for Covid-19 please see ‘Are my workers and I entitled to be tested for coronavirus?’ and ‘Can I arrange for my own testing of employees?’ in our separate coronavirus Q&A.

If employees’ temperatures are taken and recorded, this could be classed as data relating to their health and would constitute special category data. This type of data is personal data that needs more protection because it is sensitive. In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the GDPR and a separate condition for processing under Article 9. Employers will need to ensure that this is covered by their privacy notices and that a data protection impact assessment has been completed. For more detail on this please see specific employer guidance from the ICO concerning workplace testing: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/data-protection-and-coronavirus/workplace-testing-guidance-for-employers/.

An alternative to conducting temperature checks is to ask the employees to check their own temperatures. Again, this is not something which can automatically be forced upon the employees but would be voluntary. However, there are flaws and risks with this approach including:

  • Trust that the employee has properly taken their temperature and given the correct reading to you.
  • There is no right to insist that the employee shares their temperature reading with you.

If you choose to adopt this process, you should still follow the same advice above in how you record any results and what action you take in response to readings.

The same principles will apply to any temperature checks you require third parties to take before they enter your premises. If a third-party refuses to have a temperature check or to disclose the outcome of a check, you will need to make a decision as to what course of action you take next and whether you allow that person to enter your premises or not, and if so under what arrangements.

Employers should note that the Medicines and Healthcare products Regulatory Agency (MHRA) who are responsible for protecting and improving the health of people through the regulation of all medicines and medical devices in the UK by ensuring they work and are acceptably safe, are telling manufacturers and suppliers of thermal cameras that they should not make claims which directly relate to COVID-19 diagnosis, and are reminding businesses to follow Government advice on safe working during COVID-19. They have said that many thermal cameras and temperature screening products were originally designed for non-medical purposes, such as for building or site security. These products should only be used in line with the manufacturer’s original intended use, and not to screen people for COVID-19 symptoms. They do not perform to the level required to accurately support a medical diagnosis. The MHRA recommends that businesses and workplaces follow the government advice on safe working during COVID-19, as well as implementing scientifically reliable methods of testing for COVID-19.

Temperature readings from temperature screening systems will measure skin temperature rather than core body temperature. In either case, natural fluctuations in temperature can occur among healthy individuals. These readings they have said are therefore an unreliable measure for detection of COVID-19 or other diseases which may cause fever. Furthermore, infected people who do not develop a fever or who do not show any symptoms would not be detected by a temperature reading and could be more likely to unknowingly spread the virus.

If you have given clear instruction to your staff about what steps they are required to take and there is evidence that they are not complying with your instruction, then this will need to be investigated further.  You should speak to your employee to establish what happened and why, and then issue further guidance and reminders about the steps they should have been taking. In some cases, it may be possible to take disciplinary action where an employee has ignored the instruction given. Before taking any disciplinary action, you should contact the Helpline for further advice.

Depending on your business structure you may have managers or team leaders in the workplace who would be responsible for monitoring compliance with your instructions. It’s important to ensure that these members of staff are fully aware of what is expected of employees and that it is part of their role to ensure there is compliance for the benefit of everybody’s safety.

Subject to what has been agreed and continues to be agreed between you and your employee, then currently there is no reason why furlough can’t continue beyond the scheduled end of the CJRS if it is not possible for you to bring your furloughed employees back to work. However, once the CJRS has ended you will be obliged to meet the full costs of furlough yourself, including the employer pensions and national insurance contributions. You will need to specifically agree with your employee what their rate of pay will be. It would be best practice for this to at least mirror the calculation used for any previous CJRS claim.

If furlough continues beyond the end of the CJRS it may be necessary to seek further agreement with your employee depending on the terms of the last period of furlough and what was stated in writing. In any case it would normally be best practice to confirm the extension in writing for all continuing furloughed employees.

You will also need to consider what impact this may have on any eligibility for the Job Retention Bonus.

If there is a valid lay off clause in the contract of employment for your employees you may still rely on this if there is no work available. The wording of the clause is important in these circumstances and if lay off continues for more than 4 weeks, some employees may be entitled to claim a redundancy payment from you. Before enforcing a lay off clause, it would be advisable to contact the Helpline for further advice. You will also need to consider what impact this may have on any eligibility for the Job Retention Bonus.

If you are contemplating any redundancies for all or any of your staff, please always contact the Helpline and speak with one of our specialist employment advisers prior to taking any steps with regards to this process.  However, in the first instance Employment Service members may want to read the redundancy section in our Employment Manual for an overview of the process. 

If it is clear that there is a real risk of redundancy it is possible to start consultation with employees whilst they are furloughed. It is important to remember that furloughed employees should not undertake any work for their employer whilst furloughed. It is unlikely that employees engaging in a consultation process will be deemed to be working, but the managers who are conducting that process are likely to be working. Any consultation will need to be conducted in a way to comply with social distancing measures.

If you propose to make 20 or more people redundant within a 90 day period this will trigger collective consultation requirements, regardless of whether there is a recognised union in the workable. Consultation must start at least 30 days before the first notice of dismissal.