Return from Furlough
- AuthorReggie Lloyd
Government has said that it is important for businesses to carry on during this crisis. Some businesses are starting to reopen or seeing workload increase and looking to employees to return to the workplace, having worked from home or been on furlough under the Job Retention Scheme. Two common issues employers are likely to face and how they can be addressed are:
- an employee concerned about their health and safety if they return. These employees might be protected from detrimental treatment or dismissal if they refuse to attend (or left) work because they feared for their safety or the safety of another. Employers must, therefore, ensure appropriate measures are in place to comply with government guidelines and the measures are communicated – to all employees. The guidance is updated regularly and accessible at https://www.gov.uk/government/news/new-guidance-launched-to-help-get-brits-safely-back-to-work
- Consideration is needed of social distancing while at work, staggering arrival and departure times, how workstations might be allocated, use of shared spaces such as kitchens, toilets and cloakrooms and shared equipment and possible use of protective equipment. This should provide reassurance, minimise the risk of reasonable objections and help reduce the risk of successful claims.
- an employee unable to return to work if their child’s school or nursery is closed or they are not yet back at school or nursery and they cannot make alternative childcare arrangements. This is a greater risk from a legal perspective for female employees as it is generally accepted that a woman has primary childcare responsibilities. If a woman could not return to work because of genuine childcare issues and she was subjected to a detriment or dismissed she could make a claim for indirect sex discrimination. The practical risk, however, is there whatever the sex of the employee. Any employer acting unreasonably could face grievances and/or resignations followed by claims for constructive unfair dismissal (or breach of the statutory right to request flexible working). Employers should carefully consider the position and how it might be overcome, including continued working from home and providing care (which the employee may well have been doing throughout ‘lockdown’) and alternative approaches such as dependent care leave, using holiday or unpaid leave and weigh them against the genuine business justification for requiring attendance at work.
These are areas of potential risk and worth seeking advice about if the business needs to force the issue.
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