The End of Furlough: Five Questions Managers May Face

The government’s Coronavirus Job Retention Scheme (‘furlough’) has been credited with saving many jobs but is set to end on 30th September 2021. Whilst many employees who were furloughed have now fully returned to work, this is not the case for everyone. If your organisation still has employees on furlough (whether full furlough or ‘flexi-furlough’), this may be a worrying time – for both the organisation and employees – and managers may find themselves grappling with some tricky questions.

With this in mind, we look at five questions managers may find themselves facing in the coming weeks.

Five Questions

1. What employment law rights do furloughed employees have?

Furloughed employees have the same statutory employment law rights as other employees. These include the right not to be unfairly dismissed (this is subject to a two year qualifying period for ‘ordinary’ unfair dismissal, although there is protection from being dismissed for an automatically unfair reason, such as pregnancy, from day one of employment) and the right not to be discriminated against or harassed.

Employees who have been furloughed also have rights when it comes to matters such as holiday and holiday pay, notice pay and redundancy pay.

2. Can we make furloughed employees redundant?

Yes – employees who are (or who have been) on furlough can be made redundant but employers need to act appropriately and fairly in doing so. The need to make redundancies should be considered in the usual way and employees shouldn’t automatically be put at risk of redundancy or selected for redundancy just because they are or have been on furlough. It will be important that any redundancy selection pool – that is the group from which redundancies are made – is reasonable. In most cases a fair redundancy process will also need to be followed which will usually include a series of individual consultation meetings being held with those who are at risk of redundancy before any dismissals are made. If any employees continue to be on furlough, steps will need to be taken to ensure that this process happens effectively and meaningfully.

When it comes to redundancy pay and notice pay, it’s important to bear in mind that employers are responsible for meeting the costs of these – furlough scheme grants cannot be used for these purposes.

If you think you may need to make redundancies in your organisation, please contact Kingfisher Professional Services Ltd for advice on your situation before taking action.

3. Can we make any changes to terms and conditions permanent?

If an employer wishes to make changes to employees’ terms and conditions, such as making a pay reduction or altering working hours, following the end of the furlough scheme it may be possible to do so. However, it is important that such changes are not simply imposed on employees as such action can give rise to employment tribunal claims. If your organisation wishes to change terms and conditions this will usually involve putting together a strong business case for needing to do so and consulting with employees with a view to gaining their agreement to the change.

Changing terms and conditions can be a tricky area, particularly if it may affect 20 or more employees so it’s always important to seek advice on the facts of your individual case and the process to follow.

4. What should I do if an employee doesn’t want to return to the same working pattern?

In some cases, employers may find that whilst they wish employees to return to their normal working hours after the furlough scheme ends, an employee does not wish to do so and instead requests a change to their working arrangements.

Often this will be a flexible working request which employers are required to consider and deal with promptly ‘in a reasonable manner’. Further general information regarding flexible working requests can be found in an earlier Legal Update here Is Your Organisation Prepared for Flexible Working Requests? Three Fast Facts

If an employee is raising concerns about an ability to return to work their usual hours following furlough or has raised concerns about returning at all e.g. for reasons related to health and safety issues, you should contact Kingfisher Professional Services Ltd for advice on the circumstances of your situation. Likewise, if an employee is disabled and reasonable adjustments may be required.

5. What can we do to help furloughed employees settle back into the workplace?

For some employees who will be returning, it could have been a very long time since they were last in the workplace. They may be feeling daunted by the return, nervous about seeing colleagues again or lacking in confidence about their ability to do their job as well as they once did. There are steps managers can take to help alleviate some of the worries returning employees may have and help support them in settling back into the workplace, these include:

  • Communicating with furlough returners so they know when they will be required to return to work and what to expect (it’s good practice to give employees as much notice as possible of a return in case any concerns are raised that need to be addressed. If you have agreed to provide employees with a specific amount notice to return to work this should be complied with)
  • Identifying any training needs and planning ahead to make sure these are met. This will help to set your employees and the organisation up for success by increasing employee confidence and improving performance
  • Being understanding and allowing a reasonable period of time for employees to get ‘back up to speed’ – particularly if there are any changes to the way the role is carried out
  • Being approachable and making sure that employees know they can discuss any workplace issues with their manager. Whilst this is important for all employees it’s particularly so for new returners, some of whom may find themselves struggling to readjust. Letting them know that they should speak up in this situation can help to ensure that matters can be addressed at an early stage when they are often easier to tackle.
  • Thinking about re-integration, where employees haven’t worked together in a while they will need to learn to do so again, with this in mind it may be a good idea to consider whether there are any covid secure activities that could help to re-establish or re-enforce team bonds

If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.