Can my employees refuse to return to work from furlough?

As we move through the government issued stages of the Coronavirus Pandemic, business owners are faced with further challenges of arranging and facilitating the safe return of employees to the business, whether this is for furloughed staff or staff who have temporarily been working from home.

Looking at the obstacles our clients have faced so far, it is clear that there is a consensus among employees that they feel returning to work could be a matter of choice, however, the law gives us a rather different story.

As we have learned, the temporary changes of furlough are initiated through Contractual variations, where the employee has agreed to reduce their contractual pay and the employer waives their obligation to provide work for employees. Employment legislation is very clear on the requirements of a contractual agreement obliging the employer to provide work and the employee being obliged to complete work. As such, where notice is given for a furlough agreement to end, the previous terms of the contract return to work would revert the variation to the previous terms.

Although we are in unprecedented times with evolving processes being initiated through the government, there are elements of legislation that remain unvaried. As such, an employee can only refuse to complete their required obligations for a certain number of reasons, these include:

  • Health and Safety at Work Act 1974 – The employee has a reasonable belief there is an imminent risk to their health or safety. The employer must therefore do all they can to reduce the risks posed to employees.
  • Equality Act 2010 – The employee may have protection under the Act for a protected characteristic such as Parental rights or disabilities. With the current circumstances, elements of protected characteristics may have significant obstacles that the employee is unable to control, such as the availability of childcare or shielding requirements. The employer should not discriminate employees because of their characteristics but instead should work to accommodate reasonable adjustments.

“Ultimately, where employees refuse to return to work, there would need to be some form of communication to thoroughly understand the reasons behind such a refusal”

Where necessary there may be cause for formal action due to failure to follow a reasonable instruction or breach of contract, however, employers must ensure they are fulfilling all of their obligations towards their employee’s situations before making such decisions.

Where processes are followed incorrectly there is a significant risk of successful claims of health and safety breaches and discrimination claims – both of which could cost more than expected, even with unprecedented times being part of the mitigation.

The most important thing you can do is to keep the channels of communication with your employees open. If they feel they are being listened to and that you are taking their concerns on board this will help you to get your employees back to work in a way to meet both their contractual obligations and your obligations as an employer. If in doubt, please seek professional support and get in touch to book a free 30-minute consultation.

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