The transition back from furlough can be difficult for employer and employee. Liam Grime of employment law specialists ELAS, who CXCS partner with to provide rural businesses HR support, shares some advice on how companies can navigate potential issues.
1 Childcare
With some nurseries and day centres prioritising key workers, grandparents often out of the equation if they’re elderly or vulnerable and schools shut, some employees have found themselves without childcare, so are asking to work from home.
If it’s someone who’s been furloughed up to now, it can be problematic to try to insist they return to the workplace. So if working from home is unviable from your point of view, the simplest solution could be to continue to furlough them (at present, the scheme is expected to be open until the end of October). This obviously saves the business money and, if it ultimately secures that person’s employment, it’s a win-win.
Alternatively, you could talk to them about taking unpaid parental leave, or holiday time.
From September, employers will be required to contribute 10% of wages (in addition to their national insurance and pension contributions) while the government will contribute 70%. In October, the employer contribution will rise to 20%, with the government contributing 60%. This means there is an increasingly stronger business case for taking someone off furlough which, in turn, makes the expectation that they return to the workplace more reasonable.
2 Post-shielding health concerns
Some people may have a health condition that they feel puts them at particular risk were they to return to the workplace. An employee has a right to not come to work where they believe they are in imminent danger, so the employer must show that reasonable health and safety measures have been put in place (ie carried out appropriate risk assessments, are maintaining social distancing and have the relevant PPE) before insisting that the employee returns.
Make sure you can demonstrate and explain the necessary steps you have taken to make it safe for an employee to return.
3 Home-working requests
If an employee has been working at home and wishes to continue to do so, the best course of action is often to allow them to, assuming they’re performing as they need to be.
To draw a line under such an existing arrangement, you need to be able to demonstrate that working from home is no longer effective and be able to evidence that.
Try to be flexible but, as legislation changed to facilitate the nation’s return to work, employers now have a stronger case to ask people to return to the workplace. It could come down to a test of whether the request is deemed ‘reasonable’ – especially if someone is reluctant to return to the premises because of a lack of childcare or a health-related risk (as in Points 1 and 2).
4 Readjusting to work
Some people are understandably taking a little more time to settle back into the working world, especially if their role has evolved and they are perhaps now using technology they didn’t pre-Covid-19.
Try to be patient and provide any retraining required. The first steps should always be to support an employee, helping them, setting realistic targets then monitoring those and establishing where they might be going wrong.
If an employee has worries, listen to them and try to address that. Expecting them to simply get on with it could potentially lead to a resignation with a claim for constructive dismissal.
5 Job changes / contracts
Changes to shift patterns (without a variation in hours) can be handled with a contract variation procedure, which involves seeking the employee’s agreement, listening to any concerns they have and undergoing a period of consultation.
Such shift changes can disrupt people’s personal lives so employees might be reluctant, but if you have sufficient business reason and have taken into account their concerns and consulted properly, changes can usually be introduced.
Reducing someone’s hours could lead to a claim of redundancy so it’s worth exploring flexi-furlough. This allows you to bring an employee temporarily back to work on reduced hours, while furloughing them for the remainder of their contractual hours (the employee is paid their normal wage while working and will receive the furlough grant for the rest of their usual working hours).
Alternatively, you can place them on short-time working or lay them off temporarily. Both options could be used increasingly after the furlough scheme ends. However, both can potentially lead to an employee trying to bring a claim for redundancy, so both situations should be approached with care.
Redundancy can be a traumatic process for both an employee and an employer. It can also be stressful for those employees who remain as their workload may significantly change, so it’s that vital proper procedures are followed.
Understandably, redundancies are viewed as a last resort by many employers but, if you believe the work simply is never going to come back, it might be better to bite the bullet and act sooner rather than later.
6 Pay and performance
Once-attainable targets might have become less relevant or unrealistic in the ‘new normal’.
Revisiting appraisals, goals and performance management processes with your employees with help manage employee and company expectation levels.
Changing the rate of overtime pay (going from time-and-a-half to time, for example) or amending / removing commission and bonuses can only be carried out through a contract variation process. This means putting forward a proposal which may be followed by a formal procedure.
Even if not expressly written in someone’s contract, remuneration and benefits established over a period of time effectively ‘become’ contractual, so have to be treated as such.
7 On the road
Some employees may have concerns about travel or site / client visits, even if such visits have always been an integral part of their job description.
If they’re visiting clients / sites, you’re inevitably partly dependent on the coronavirus measures that are in place.
You could ring clients ahead to ask what measures they have in place, asking them to do more if you feel their current measures are inadequate. This may well alleviate the employee’s concerns, plus you can provide some of the necessary PPE yourself for them to take.
Ultimately, an employee has a contractual obligation to carry out their job so, unless they have a health condition that puts them at severe risk, they shouldn’t refuse to do this if you’ve taken sufficient suitable steps to protect their safety.
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