After nearly a year and a half, the furlough scheme (also known as the Coronavirus Job Retention Scheme) will be coming to an end on 30 September 2021.
For a lot of businesses, the end of the scheme will present difficulties, especially where trade has been affected by the pandemic and it is not possible for all staff to return to work on their pre-furlough terms and conditions. It will inevitably result in the need for large scale redundancies across a lot of industry sectors. For others, it presents an opportunity to adopt different ways of working.
In this article, I explore some of the questions that I am hearing from employers along with some practical tips for businesses in navigating the ending of the furlough scheme and employees coming back to work.
1. How do I end the furlough arrangements and do I have to give the employee notice?
When a furlough agreement comes to an end the employee will revert to their pre-furlough contractual terms unless a change to those terms has been agreed upon. There is no legal requirement to provide an employee with notice, however, if the furlough agreement is silent on this point, it is advisable to provide employees with as much notice as possible that the furlough agreement is coming to an end so that meaningful consultation can take place regarding arrangements for the employee’s return to work.
Whilst restrictions have eased and large numbers of the population have now been vaccinated, employees may still be concerned about the risks that a return to work might create for them and care will need to be taken around employees with disabilities and any adjustments that might need to be made on account of this.
2. We cannot bring all staff back from furlough but we would like to avoid making redundancies, are there any alternative options?
It is important to consult with all staff returning to work after the end of the furlough scheme. Consultation provides an opportunity to explore alternatives to redundancy. Some alternatives that can be considered are:
- Reduced hours for the same pay,
- Reduced pay with the same hours, or
- Redeployment into different roles.
If a proposed change is covered by a flexibility clause within an employee’s contract e.g. concerning pay / place of work, then you can usually make that change. However, it would still be advisable to consult with staff about such a change. In the absence of such a clause, you would either need to agree the change with the employee or their representative. If changes cannot be agreed you might still be able to force a change by dismissing staff and rehiring them on the new terms (often referred to as fire and rehire).
3. A number of employees want to continue working from home, do I have to allow this?
The pandemic has enabled people to work in different ways and many businesses have invested in improved IT equipment and software to enable employees to work from home. We have heard from employers and employees the benefits of flexible working arrangements include improved productivity and well-being.
Legally, employees with 26 weeks of continuous service can make a request to work flexibly e.g. a change to their working hours, days or place of work. There is an obligation to consider requests although these can be refused on certain business-related grounds including factors such as increased cost, difficulty distributing work amongst other staff, meeting customer demand and effect on quality and performance. Some of these reasons may well prove more difficult to argue following the pandemic if altered working arrangements have operated successfully during it.
Consulting with employees to find out what has worked well / not so well and balancing that against what is possible with the needs of the business is a good way of ensuring that employees are listened to and any changes introduced are not met with resistance. If changes to working arrangements are agreed, new contracts must be issued detailing those changes. You may also want to review existing policies to see whether or not new policies need to be introduced e.g. home working / hybrid working policies, to put clear boundaries around such arrangements.
4. Some roles are more suited to home working than others. Can we grant some applications for flexible working and refuse others?
You can only turn down a flexible working request for a valid business reason, therefore, provided there is clear evidence to support why certain roles are suited to be carried out at home and others are not, a refusal of some requests might be justified. Care needs to be exercised, however, when considering any requests and whether the granting of certain requests and refusal of others, might be discriminatory.
If you are an employer contemplating the return of employees from furlough and require further advice or support in the management of this then please contact our employment law expert, Dionne Dury at email@example.com