What Happens When An Employee Refuses to Return to Work After Furlough
As the country starts to slowly but surely get back to normal after the most recent lockdown and complete easing of restrictions, a lot of employers will be making plans to open up their workplaces once more, after many months of remote working.
However, returning to the workplace isn’t as simple as throwing open the doors and expecting things to be just as they were before March 2020. There’ll be a lot of uncertainty ahead, particularly if the government’s Winter Plan turns out to require a new remote working mandate.
One thing that is happening, however, is the end of the Coronavirus Job Retention Scheme (CJRS), more popularly known as furlough, which has enabled millions of employees to avoid redundancy when their employers were forced to close back in March 2020. After several extensions due to continuing disruption caused by the pandemic, the scheme is now ending on 30th September 2021. So, what’s going to happen at the end of this month to those employees who are still currently on the scheme?
Return to work for furloughed employees
The end of the scheme means that staff on furlough will be returning to the workplace. This will raise a number of issues that you’ll need to be aware of, and plan for.
If you still have staff on furlough, the best way to start the process of getting them back into the workplace is written or verbal communication with everyone concerned. Any communication should outline where the return to workplace process stands and the current status of the CJRS. Additionally, as many people will still be concerned about the possibility of contracting COVID-19 in social environments such as workplaces, you can take this opportunity to advise employees about the steps you’ve taken to protect their health and safety, including social distancing, screening, reduced staff numbers in the office at any one time, sanitisers and wipes and a policy on the use of masks. This is likely to reassure most, if not all, staff that you’re considering their wellbeing.
You’ll also need to make sure that when you bring employees off furlough and back into the workplace, you do it in accordance with the terms of the scheme, which were put in place when it began. This means that you’ll have to do it in writing, although there’s no harm in supplementing this with telephone contact as well.
Most employees will be reassured by the steps you’ve taken, but there will always be a few whose attitudes may cause problems and who may refuse to return to work after the furlough scheme ends. If this happens to you, how can you ensure a successful outcome for both you and the employee in question?
One of the first steps if there’s a refusal to return to work is to establish why, and the best way to approach this is pragmatically, rather than in a doctrinaire fashion. A healthy dialogue where the employee has the chance to put their reasons forward will increase the chances of an amicable resolution.
Health and safety concerns
These are likely to be one of the main reasons for people refusing to come back to work and, considering the level of alarm and anxiety surrounding the pandemic and its consequences, it does need to be handled sensitively.
All employees should be fully briefed on your health and safety plans. Responses to this briefing may highlight other provisions that could be put in place and ones you may have overlooked.
Informal discussions about employee concerns may be a better idea than getting formal too quickly. No matter how the situation is handled, it’s best practice for you to keep notes about what was discussed.
Legal protections for employees
If, after all this, the employee still won’t return to work, and you’ve complied with all the government guidance that has been published, it’s worth keeping in mind that Section 44 of the Employment Rights Act 1996 says that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, if they had a reasonable belief of imminent or serious danger. This includes refusing to return to their place of work.
Section 100 of the Act may also allow an employee to bring an unfair dismissal claim, if in the event of refusing to return to the place of work due to a reasonable belief of danger which was serious, or imminent, they are then dismissed.
However, the success of their claim would depend on a number of things. The tribunal would look at whether the employee’s concerns and beliefs about their health and safety were justified and reasonable, whether you followed all available guidance and what actual danger the employee would be in if they did return to the workplace.
The case of Rodgers v Leeds Laser Cutting Limited highlights the limits of the argument for reasonable belief. Rodgers refused to return to his workplace when a colleague showed symptoms of COVID-19. He told his employer that he was worried about putting his vulnerable children at risk. After a month, he was dismissed. He claimed for unfair dismissal under Section 100 of the Employment Rights Act, but the tribunal found that the dismissal was not automatically unfair.
The tribunal ruled that a reasonable belief in serious and imminent workplace danger had to be judged on the circumstances as they were at the time of the events and on what was known to the parties. The working conditions and COVID-19 secure measures implemented by the employer were reasonable and more than adequate and did not warrant Rodgers’ claim that there was serious and imminent danger, a claim further undermined by the revelation that he had breached self-isolation during the month he was refusing to attend the workplace. Therefore, his claim failed.
Only one employee?
If only one employee is refusing to return to work, you could consider offering them the chance to take some annual leave, or unpaid leave. If they don’t agree to this, and still refuse to come back to work, even though they have been brought off furlough, then you may have to consider going down a disciplinary route. Disciplinary action should always be a final option after everything else has been tried, and in any case, if health and safety concerns have been raised, legal advice should be obtained to ensure that your position is safeguarded.
If you’ve taken all reasonably practicable steps, are complying with prescribed safety measures and have put risk assessments and other safeguards in place, then – unless the employee has a genuine medical reason to back up their concerns about not returning to the workplace – it is likely that you could treat them as being on unauthorised absence and, depending on what is contained in policies and the staff handbook, take disciplinary action against them.
If a date has been provided for a return to work and the employee simply fails to turn up and has not followed absence reporting procedures, then this would count as an unauthorised absence.
If this happens, you need to think carefully about how to approach payment to the absent employee. You risk a breach of contract which could result in ACAS involvement, and even the Employment Tribunal, over an unlawful deduction from wages claim.
Generally speaking, you’re not required to pay your employees normal pay if there is a period of unauthorised absence. However, you first need to contact them and find out what their reason for non-attendance is.
If you’re satisfied that there are no acceptable reasons for the absence, then it is likely that you’ll be safe not paying them for their time of unauthorised absence. They should be informed in writing so that they’re left in no doubt as to what’s going on and you can produce written evidence that you’ve followed procedure if a claim arises.
In addition to not paying the employee, you may want to consider a disciplinary process for being absent without leave. However, think about the level of sanction imposed, particularly if there’s been no prior history of misconduct. Dismissal should only be on the grounds of a gross misconduct offence, or if the employee has collected various warnings that are still active.