End of Furlough – Are your staff willing or unwilling to return?

In June about 2 million people were still on furlough, with some 28% of employers still furloughing staff. This month we are already seeing lots of staff returning to the office, resuming duties and getting back to ‘normal’. Business it would appear is generally getting busier.

However, it seems that not all employees want to return to the workplace and whilst employers need a happy and engaged workforce, they must also consider business needs.

The following guidance will walk you through the options for employers if faced with employees who are unwilling to return to work, together with practical advice around mandatory vaccinations, redundancies, holidays, hybrid working, contracts and personal responsibility.

End of Furlough Options

Alongside this increase in trade and activity, furlough is winding down and government contributions are reducing. The scheme will officially end on 30th September.

This gives employers several options around still furloughed workers:

  • Option 1 – get your furloughed workers back to work
  • Option 2 – make them redundant

Already at Jaluch we are seeing lots of challenges around those who are getting staff back to the office and requests for support with staff reps training ahead of redundancies. There is no easy decision for many about return-to-work or redundancy, but the time has come to make the decision – whichever way it goes.

There are a few considerations here though so let’s ensure that employers think it through and plan carefully to avoid both grievances and any tribunal claims.

Employees who refuse to return from furlough – “I don’t want to”

Aside from your business decision around bringing staff back or making redundancies, let’s deal here with the most challenging of the issues employers are facing when bringing staff back – managing those employees who don’t want to return from furlough.

You will get excuses, reasons, validations and guilt-tripping etc. all thrown at you about why someone cannot return from furlough but at the end of the day remember who is in control here – you… not your employee.

If you allow every employee to determine what is right for them you will have anarchy. You must stay in control.

If someone refuses on grounds of ill health then it all starts to feel complicated. But it’s not that complicated – either they are signed off by their doctor or they come back to the office/workplace. If they return, you may need to look at temporary or permanent adjustments to accommodate their ill health just as you would with any other sickness absence returnee.  If they are signed off, then a period of absence management begins which may ultimately result in their dismissal and which may or may not include getting doctor’s information or involving an occupational health consultant.

If someone refuses on grounds of pet care or family care then again, don’t overcomplicate it – you have a role to be done and you will have a clear understanding of how that role can be done. If they wish to apply formally for flexible working to accommodate their caring duties, then they can do that in line with legal options around making flexible working requests. You don’t have to accept their request and not everyone has the right to make a request. If there are business reasons to reject it and they don’t have options if for example, you decide that looking after a dog is not sufficient reason to not return to the office.

We won’t go into all the reasons here why staff are fusing to return to office as these are numerous and often complicated but please do not feel your back is against the wall and you have no options. Talk to us!

Government Vs the Law

No jab, no job is a phrase we have seen crop up over the last few months, all starting with Pimlico Plumbers bold, yet controversial decision. Now with Google and Facebook only allowing fully vaccinated staff to set foot in their offices. Ministers in the UK appear to be backing the same horse, saying ‘it’s a good idea and yes, some companies will require it’.

Even Dominic Raab expressed his support in the double jab policy, labelling it as the ‘smart policy’. Maybe he’s not bothered about our human rights? How can we have parliament promoting the enforcement of jabs on the one hand and our professional bodies, ACAS and CIPD advising us that this ‘an intrusion on an employee’s body and may discriminate on the basis of disability, or religious or philosophical belief’.

You may find yourself in hot water if you are considering putting Covid vaccination requirements in place, therefore be prepared to answer some difficult legal questions… especially if your vaccination policy doesn’t stack up and you have not thought about your justifications for having one in the first place.

If you are in a sector that the government legislates requires staff to be jabbed, you are in the clear and not risking legal action. If you are in any other sector, including those that are not in but service the care sector, please tread with extreme caution.

Redundancy – Failure to Consult

With furlough coming to an end, we are already seeing a surge of re-organisations and role re-thinking resulting in redundancies.

We are sure you know but, as a reminder, there are very clear expectations around consultation with staff if you intend to make redundancies. Failure to consult can result in a penalty of up to 90 days’ pay PER PERSON. Even if your actions are logical, sensible and you treat people with respect, you still need to consult. And if you don’t know what consultation looks and feels like as you have not had to consult before, please ask for support. Formal meetings, proper meeting notes, follow up letters are the cornerstones of consultation so please, please don’t cut those corners.

If you want further information on this, we have covered redundancy risks and professional redundancy planning if our previous HR Blasts.

Holidays

If you have planned holidays across the last 18 months your furloughed staff will have been regularly taking and using up their accrued holiday entitlement. This is what we advised at the start of furlough. However, we do know of some businesses that chose not to go down this route and that are now facing many weeks of accrued holiday per employee on their return from furlough.

If you have staff with still a month or so of furlough to go, then why not ask them to take holiday now? You will have to pay at 100% of pay but it will be less disruptive if they take holiday now than the week after they return to work.

Holiday of course is a contractual right so please don’t be tempted to write it off or not allow the full holidays to be taken. Any employee leaving through resignation or redundancy etc will have the right to be paid for accrued but untaken holidays. If you don’t pay in full this will potentially be a breach of contract.

You can still manage holiday though for those back at work. Just because time is requested does not mean you have to agree, equally you can give notice to employees of when holiday should be taken. Check the law on this before you take action, but one option may be to require those with accrued holiday that hasn’t been taken or booked to use up some or all of their holiday during your next quieter period. Plan it and it will feel like less of a burden on the business.

Discrimination – which ones could catch you out…

 If you’re considering a vaccination requirement, with no exception, individuals who fall into the following protective characteristics could be at a detriment. Tread with caution and avoid pursing a policy based on your personal views rather than one that is logical and well thought through. For those of you who have staff representatives, this is a great opportunity to use this group to consult about your intended approach. Otherwise why not consult via an intranet or staff survey?

Discrimination potential trip hazards…

Age – media reports suggest that more young people than older people have not been fully vaccinated. Many have been put off by blood clots reported with some vaccines. Plus of course there are numerous other reasons why younger people may have hesitated or refused including many not being registered with a GP which precludes people from being able to get a second jab.

Race – there has been greater hesitancy in minority ethnic groups due to low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographics and lack of communication from trusted providers.

Religion / Belief – those with strong views against being vaccinated (the so called ‘anti-vaxxers’) may claim their philosophical belief protects them.

Sex – due to lack of medical evidence around fertility and being vaccinated, women are being put at a disadvantage. Although there is little evidence on this, there have been reports of midwives advising pregnant women against having the vaccine.

Disability – those with some medical conditions may be put off by the vaccine or may have been told not to get the vaccine. Pressure on this group of individuals to have a vaccine could lead to a disability discrimination claim.

Angling for redundancy

We are seeing quite a lot of people not wanting to come back to work, even though there is work ready and waiting for them. They might want to be made redundant but if you have work for them to do and they are able to do it then it is not a redundancy.

If they want to leave, then they should resign as any other employee would resign when leaving their employer. No payments needed, just notice provided/worked.

Can we ask you a question? If just one employee pushes or guilt trips you into paying a redundancy payment now when it is the employee who is wanting to leave/resign, if that employee changes their mind a few months down the line (as so often happens when financial reality hits), will you have the evidence that it was in fact a resignation or might they have a case that it was in fact a redundancy, as evidenced by your payment of a redundancy payment? If a redundancy is claimed and proven then you will probably lose any unfair dismissal claim as you will probably have failed to follow the usual process around selection for redundancy and consultation. They might even clobber you with some sort of discrimination claim too.

So… be careful not to be caught out when trying to be ‘kind’ to employees –  redundancy payments paid as a result of wanting to be ‘kind’ have caught many employers out over the years.

Flexible and Hybrid Working

With a significant interest in more flexible working patterns, many employees have somehow created their own ideal working conditions. Maybe forgetting that they have a contract of employment and that there are formal procedures to request flexible working?

Is it time to regain control of what flexible working is in your business, how it can be requested and agreed and in what circumstances employees can claim flexible working through custom and practice? Again, another question from us… who is managing whom at this time? Do you managers feel in control of flexible working, or do they feel controlled by employees who assert what works for them?

Contractual procedures aside, almost all of us have seen a massive culture shift in ways of working during the pandemic. This shift in behaviors has forced employers’ hands into thinking more creatively about how to employ staff. As a result, any employer who is now seeking a return to normal with no change to flexibility may well miss out on the pool of talent that’s now demanding home working to be part of their ‘package’…

‘Flexibility’ used to relate mostly to reduced hours working, reduced days, term time only working, home working etc. however increasingly when people talk about flexibility they are talking about a combination of home and office working.

 There are a few legal implications of hybrid working so please don’t agree hybrid working without thinking it through.

  • Employment contracts should state a contractual location, if this is their home, then put their home address in their contract, likewise if it’s their office, state that it is the office. You can’t usually have two contractual locations so be really specific about it…. E.g. it is the office but you do allow them to work 2 days a week from home or it is home-based but they will be required to attend the office from time to time and travel expenses will be paid when they do
  • Do employees have the right home insurance to cover home working?
  • Consider TAX implications if employees are working abroad – usually just 183 days in a European country results in them having to pay local taxes as well as any tax you are deducting at source. Be careful! If in doubt require your staff to be located within the UK whilst employed by you.

As we begin getting back to ‘normal’ home working practices, in addition to those items above there is host of home working arrangements to keep an eye on too.

  • Do your employees have a professional space to work in at home? If they don’t you might choose not to agree to home working – just as used to be the case.
  • IT and equipment – are the properly set up for permanent home working?
  • Health & Safety – have you done a recent home working risk assessment, are they safe in the area they work?
  • Keeping work and personal lives separate as far as is reasonably practicable – wellbeing is high on everyone’s agenda so give consideration to how home/work is managed
  • Regular communication is essential for so many different reasons so check in to ensure that regular communication is set up including team meetings, one to one’s etc
  • How are you going to manage attendance at any formal or informal meetings or other work commitments – will you require them to attend the office, will you conduct meetings formally by video link?

For support with drafting your hybrid policy including, training your managers in managing home workers, creating contract clauses etc. please do ask our experienced team at Jaluch. You can also download a template hybrid working policy, from our document site Docs Wizard.

Personal responsibility

Whilst there has been a lot of focus on employers’ responsibilities – COVID assessments, wellbeing focus, legal compliance around furlough etc. work cannot function with adult-to-adult interaction unless staff also understand the importance of personal responsibility. As we often say at Jaluch, with every right comes an associated responsibility.

  • Right – to request home working
  • Responsibility – to ensure the home working set up is professional and appropriate.
  • Right – to be fully communicated with
  • Responsibility – to raise any concerns about communication, to seek to solve communication issues without apportioning blame
  • Right – to be trusted whilst working at home
  • Responsibility – to not betray that trust by leaving sensitive documents or information lying around for visitors to see or by being careless with the security of company equipment

If this sounds like something that needs to be developed in your business or team, look at our accountability training.

Are our contracts of employment getting messy?

This is a great time to review employment contracts as there could be lots of potential changes:

  • Job titles
  • Holiday rules
  • Place of work
  • Hours of work
  • Conduct of formal disciplinary meetings may have adapted to a video format etc.

So that staff can be managed professionally and appropriately, ensure your documents are up to date and reflect your new ways of working.

Full sets of policies and contracts available from Jaluch’s template docs service, Docs Wizard.

Go digital

While you are at it, why not banish those handbooks and contracts that used to be signed in ink? We know lots of you have moved over to digital signatures but plenty still that haven’t. At Jaluch we moved Adobe Sign around eight years ago – no more paper, no more lost contracts, no more scrabbling around for an envelope and the long walk to the post box! All paperwork managed in a professional and time efficient way.

We also moved to soft phones for ease of home working ten years ago too. If you still haven’t introduced these, this is a great time to do this, especially as lots of staff are asking for a re-balancing of video calls to traditional phone calls.

Lots to think about we are sure so please do call us if you have any questions or would like any support .

And here is what lots of you are asking us to deliver for you this month:

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