7-minute read

To furlough or un-furlough staff – that is the question

According to the Chamber of Commerce coronavirus business impact tracker in April 2020, 76% of companies furloughed some or all of their staff and close on the heels of the initial questions new ones are arising about furlough and un-furlough staff, due to the scheme continuing until the end of October 2020.

While it is possible to provide generalised answers, each business is unique so therefore will have questions specific to its situation. To ensure you avoid opening your business up to risk when furloughing and un-furloughing staff, we recommend seeking professional advice, including from an experienced employment lawyer. As lockdown begins to lift, by engaging legal advice you will continue to know where you stand, avoiding potential future claims.

This article covers the basics of what you need to do to stay on the right side of the law and is up to date at the time of writing. As the situation continues to change rapidly we recommend keeping abreast of the news. Here our brief summary update of the Chancellor, Rishi Sunak’s address from Friday 29th May 2020.

If you have not done so already, we recommend setting out a return-to-work strategy to guarantee a quick and strong recovery; in stages or otherwise depending on UK Government advice. All changes need to be:

  • communicated clearly
  • agreed with employees
  • well-documented.

It is also recommended that records of the agreement you’ve reached with an employee to furlough them are kept for five years.

It is hard to believe that the terms ‘furlough’ (staff on temporary leave which goes hand-in-hand with the Government’s Coronavirus Job Retention Scheme (CJRS) created to try and retain workers) was largely unknown outside the US before spring 2020. Similarly, ‘un-furlough’ was a largely alien term, meaning bringing colleagues back from furlough leave.

When should I start to un-furloughing staff ? 

On 12th May 2020, Chancellor of the Exchequer Rishi Sunak announced that the extension of the CJRS to October 2020, with the current measures (whereby the government is reimbursing employers for up to 80% of the cost of their furloughed staff salaries) continuing until the end of July 2020. The government is due to publish guidance on the mechanics of the scheme post-July 2020 at the end of May.

Nevertheless, employers may still want to start bringing people back into the workplace, particularly given the amendments to rules on lockdown and working in England announced by Prime Minister Boris Johnson on 10th May 2020.

Before jumping into the detail about bringing staff back in to work, ask: How can I also keep customers safe? It could be that the first point determines the second. The objective is a safe return to work, and to achieve this you will need to identify key employees, and essential functions.

People involved in setting out the process should include senior decision-makers, and HR in conjunction with employment lawyer.

The discussion needs to also consider mental health, wellbeing, and risk of potential claims could include for discrimination, unfair dismissal, and many more – depending on the individual circumstances.

Crucial to success is maintaining open lines of communication with your staff. As their employer it is important that you explain changes, being clear about why some decisions are being made, and provide reassurance. Points covered could cover why some staff are remaining furloughed, while others are returning to work. Invite colleagues to raise any questions, encouraging them to get in touch with questions or concerns.

Remaining open to challenge is also important because you, as the employer should to be aware of people’s individual circumstances. For example, this could include:

  • a colleague with an NHS letter who needs to remain shielding
  • anyone showing symptoms who should be self-isolating
  • a worker who prefers not to be working at home due to individual circumstances
  • staff with child / other care responsibilities.

Who to furlough first?

This is an open question as it depends on the kind of business you are operating.

For example, the answer would be different for a chemist compared to hotel when considering who are the most essential staff, or the most experienced, to facilitate a quick recovery. You may also find some colleagues are reluctant to return to work amid safety concerns, including those experiencing the newly-identified ‘coronaphobia’, which relates to returning to normal after lockdown.

Can I un-furlough staff in stages

Yes, un-furloughing can happen in stages but be careful about the criteria you apply to bring people back to ensure it is legal, and is not discriminatory. We recommend bringing people back in stages but seek legal advice about your plans before taking action.

To stay on the right side of the law and avoid a legal challenge, in employment law terms decisions must be documented, transparent, non-discriminatory (eg, avoiding personal preferences), and fair.

Getting back to work essentials include:

  • following HSE safety advice
  • maintaining physical distancing and personal protection in line with government advice
  • retaining hand-sanitising facilities and ensuring regular hand washing
  • maintaining a more vigilant and frequent cleaning regime for handles, rails etc
  • keeping up to date with the pace of change and able to respond to updates.

If this information leads you to further questions, please contact our experienced employment law team by email or by phone. They are happy to have a free initial discussion with you to talk through your situation.

Thank you to the author: Angharad Williams