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Employment Law Bulletin - May 2020


Your Furlough Questions Answered...

We hope that you and your families are keeping safe in this difficult time.

It is good news that the lockdown is easing in the UK, and some businesses are now able to return to work. However, we are also aware that this raises many questions for you. On Monday 11th we hosted a webinar that explored what a return to work would look like following the government's latest announcement on the 10th, from both a people and health and safety perspective.  If you would like to receive a recording of the webinar please do let us know. 

In this newsletter we will answer some of the issues that you might be pondering:

Can an employee refuse to return to work?

An employee cannot unreasonably refuse to work, so if you ask an employee to return and the employee refuses, the question is ‘why?’. 

If the employee is arguing that the workplace is not safe then you need to listen to the concerns of the employee and investigate them. The employee is raising a health and safety concern and must not suffer a detriment for raising such a concern. Respond to the employee, and confirm in writing, explaining either that the concern is unfounded or explaining what you have done to address the concern.

If the employee then reported the concerns to the Health and Safety Executive or a similar body this is likely to be a protected disclosure. The employee must not suffer a detriment for making such a disclosure, and you should not reprimand the employee for contacting the HSE.

If the concerns are unfounded and the employee still refused to return to work, this could be a disciplinary issue. However, a dismissal for raising a health and safety concern or for making a protected disclosure is automatically unfair, and the employee does not need to have any minimum length of service to make a claim. You therefore need to be clear that any disciplinary sanction is because of their refusal to comply with a reasonable management instruction (about returning to work) and not because they raised a ‘whistleblowing’ disclosure.

It is clear, therefore, that a refusal to return to work raises a number of difficult issues. If this occurs address the problem as follows:



What notice do we need to give employees that they need to return to the workplace? 

Employees have a contractual obligation to work for you, and if the workplace is their usual place of work, as defined contractually, it could be argued that employees should go back as soon as you tell them. However, the reality is that employees might have to make arrangements due to caring responsibilities or other issues.

To force employees back, with no regard to their personal circumstances, could be seen as a breach of the implied term of mutual trust and confidence. Therefore, you should be talking to employees, addressing their concerns and agreeing timescales that meet both your needs whilst also being clear about your expectations. 


Do we have to help employees with transport to work?

The amount of public transport available is being increased, although the government is encouraging everyone to avoid using it unless really necessary.

You are not responsible for providing employees with transport to work, but you might want to think about staggering start and finish times so that employees are not having to use public transport at the busiest times. 



Can an employee make a request to work from home?                                                            

Working from home might have been a beneficial experience for many employees, and some will prefer to continue working in this way. All employees who have at least 26 weeks’ service with the organisation can make a request for flexible working as long as they have not made a similar request in the past 12 months. A request can be for flexibility in the place of work – to change it to home.

You must consider a request, and respond to it within three months. You should meet with the employee to discuss the request. The employee does not have a legal right to be accompanied at the meeting by a colleague or trade union representative, but it would be good practice to allow this.

You can refuse the request. There are eight grounds on which you can refuse, including a negative impact on quality, a negative impact on performance and a negative impact on the ability of the individual to do their work. If they have been working effectively from home during the lockdown this might be difficult to argue.



Can I insist that an employee returns to work if the school/nursery is not open?

If an employee has childcare responsibilities there are two main options to consider:

An employee can be furloughed, using the job retention scheme, if they have childcare responsibilities arising as a result of Covid 19. You could, therefore, furlough an employee who is unable to return because their child is unable to attend school, but remember that employees cannot do any work for you whilst furloughed until the start of August (when the job retention scheme changes and they will be allowed to do part-time work).

The employee could take Parental Leave. This is unpaid leave taken to care for a child aged under 18 years. The maximum entitlement is 18 weeks, with no more than four weeks to be taken in a year. This will not be a popular option as it is unpaid.



Can I insist that employees wear face masks, and provide their own masks?

You should carry out a risk assessment of the workplace, being mindful of the government guidance about the way that Covid 19 can be spread. The government advice is that employers with more than 50 employees should publish the risk assessments to all employees, but it would be good practice to do this regardless of the size of the organisation.

The government guidance says that, unless you are in a clinical setting, PPE (personal protection equipment) in addition to that which is usually worn to do a job is of limited value. However, if your risk assessment concludes that PPE must be worn you are required to provide this for your employees, and you are responsible for ensuring that it is appropriate and in good order. You cannot insist that employees provide their own PPE.



Can I choose which furloughed employees return?

If you have furloughed employees because none were able to work from home, but now want employees to return to work you might not have an immediate need for all employees to return. You can choose which employees return to work, but this choice must be made on the basis of work requirements and not on the basis of any discriminatory factor. For example, do not choose who should return based on length of service (this could be indirect age discrimination) or based on who has young children (this could be indirect sex or age discrimination).

Unless your original agreement when you furloughed employees had an end date on it, you do not need to extend any furlough agreements. However, it would be good practice to indicate to furloughed employees when you think you might be needing them to return to work.



What happens with shielding employees?

Someone who is ‘shielding’ has received a letter from the government asking them to remain at home for 12 weeks because they have an underlying health condition which could mean that catching Covid 19 is particularly damaging for them. 

Anyone who is shielding, or who is living with someone who is shielding, can be furloughed. Given that the initial 12 weeks of shielding has not yet ended, you should not put any pressure on a shielding employee to return to work.



Can employees insist on taking annual leave?

An employee has an entitlement to at least 28 days of paid annual leave each year, but no employee has a right to insist on taking their leave at a particular time. As in ‘normal’ times you have the right to consider requests for annual leave and reject them if they are not convenient.

If an employee has already booked annual leave which you want them to cancel you would have to give them the same amount of time as the leave as notice (so one week’s notice to cancel one week’s leave). However, if the employee will incur costs due to the cancellation of a booked holiday you should be prepared to reimburse the employee. 

An employee can carry forward up to four weeks’ leave for two years if the employee is unable to take the leave due to Covid 19.


What about health and safety issues?

The government is now actively encouraging those who cannot work from home to go back to work but is clear that the workplace must be safe. Liability can arise if that is not the case. Guidance has been issued to help employers to make workplaces COVID-19 secure. This is relevant both to those who have been allowed to operate throughout lockdown and to those who are now planning a full or partial reopening.  Regulatory partner Sarah Taylor has produced a blog that explores the new guidance for employers.