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Bringing employees back from furlough

It’s true to say that the world of work is a very different one in comparison with the beginning of the year. However, attentions are starting to shift towards the economic recovery, with the government unveiling plans to extend the Coronavirus Job Retention Scheme (CJRS) and enabling employers to utilise the flexible furlough arrangements which come into effect on 1st July 2020.

In this article we focus on the upcoming changes to the CJRS and as always, bust a few myths and answer some key questions to help you to get back up and running.

  • What are the upcoming changes to the CJRS?

With effect from 1st July 2020 employers will be able to bring their employees back to work but on a flexible basis.

In practice this means that your employees will still be furloughed, they will still be receiving 80% of their pay (subject to the cap) but rather than being prohibited from working, as is currently the case, they will be able to carry out some work for their employer.

  • My employees have already agreed in writing to being furloughed; do I need to write to them again before placing them on ‘flexible furlough?’

The HMRC guidance does refer to employers agreeing flexible furlough with their employees. Therefore, we would advise that if you are going to use the flexible furlough arrangements then you write to the employees to confirm this.

As always, our legal experts are on hand to provide any paperwork you need, along with talking you through the options to best suit the needs of your business.

  • Is there a minimum or maximum number of hours I can ask my staff to work on flexible furlough?

No. As long as you are not expecting your employees to work over their contracted hours or work a shift pattern which is not in line with their contracts e.g., asking them to work nights shifts when they have only ever worked day shifts.

You could bring them back for 2 hours a week, an hour a day and so on.

  • What if I bring them back to work on a flexible basis and find that I don’t have enough work for them? Can I put them back on full time furlough?

Yes you can.

  • I haven’t needed to use furlough up to now but I think the flexible furlough scheme is something that will benefit my business. Can I agree with my staff to be placed on flexible furlough with effect from 1st July?

No. Employees must have been on a period of furlough leave for a minimum of 3 weeks any time between 1st March 2020 and 30th June 2020.

The latest date an employee could be furloughed was 10th June 2020 *

* There are some exceptions to this cut-off date in respect of employees who are on  parental/maternity/paternity/adoption leave – please seek advice from us on employees falling into these categories.

  • What if my employees are refusing to return to work?

Employees should not unreasonably refuse to return to work. If you find yourself in this situation then you need to establish clearly with the employee why they are refusing to attend work.

Shielding:

You may find that they are refusing for health reasons. If they are shielding in line with Public Health Guidance, they may continue to be furloughed (taking account of the cut off dates above)

Childcare:

Again, they can continue to be furloughed or they may be eligible for unpaid parental leave, subject to eligibility criteria.

Employee sickness:

An employee can continue to be furloughed or put back on furlough (again subject to the cut off dates).

Alternatively, the employer may decide to place them on sick leave. In which case you will need to pay sick pay in line with the contract of employment. If you operate a company sick pay scheme the employee is entitled to this or at the very least, they must receive statutory sick pay (SSP).

Remember your Health and Safety obligations when preparing your employees to return to work, please see our previous article below:

Employers’ Health & Safety Responsibilities

  • My employee is refusing to return to work despite the fact they are not ill, not shielding, not classed as at risk or vulnerable. They are concerned about travelling on public transport. Where do I stand?

It’s a tricky one. On the one hand it is not your responsibility to get your employees to work and of course you have no control over travel safety arrangements in place on public transport.

Under these circumstances, see if you can use flexible furlough or adjust the start or leave time of your employee’s work pattern so that they are not travelling during rush hour for example.

Make sure they have exhausted every option in terms of seeing if they can get a lift to work from a family member or perhaps if one of their co-workers is part of their social bubble, can they car share?

We all need to try to be as flexible as we can but again employees should not unreasonably refuse to work.

  • Do I have to continue to use furlough? I am concerned that in August and September the employer contributions to the scheme will go up and I just don’t think I will have the funds.

With the UK economy expected to reduce by up to 10% and with the country facing recession, it seems that the Coronavirus Job Retention Scheme (CJRS) has assisted a lot of businesses in the short term but is not going to be a lasting solution.

Employers are not ‘forced’ to furlough, dependent upon your employment contracts you may wish to place employees on lay off or short time working. Perhaps you are looking at permanently reducing staffing numbers. Please see our previous article on these subjects and make sure you seek our expert advice to ensure that you avoid any legal pitfalls:

And finally, we here at Avensure are working closely with businesses across all sectors to support them during these very challenging and unprecedented times.

Please ensure that you seek advice from our experts as there is not always a ‘one size fits all’ answer to a lot of these scenarios and mistakes will be ever more costly for your business in the current climate. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0330 100 8704

FURLOUGH AND ANNUAL LEAVE – FACT OR FICTION:

  1. Annual leave does not continue to accrue during furlough.

FICTION

Annual leave does continue to accrue.

  1. We don’t allow our employees to carry over annual leave, therefore if it’s not taken in this holiday year it is lost.

FICTION….well sort of

The Working Time Regulations have been amended to allow employees to carry over up to 4 weeks of annual leave across the next 2 holiday years.

However, this is subject to the employer’s agreement- if the employee can take their leave this year then they should be encouraged to do so.

There is no automatic right for an employee to cancel their pre-booked leave because their flight to Tenerife is no longer going ahead either.

It all comes down to reasonableness on both sides.

  1. You have to pay your staff full pay if they take annual leave during furlough.

FACT

You can still claim through the CJRS but if an employee takes leave during furlough you will need to ‘top up’ their wages to their full contractual pay.