October 20, 2021

Volume XI, Number 293

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October 19, 2021

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October 18, 2021

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COVID-19: what next for UK employers, Part 2

There has been surprisingly little in the press around what is going to happen when the Coronavirus Job Retention Scheme ends on 30 September.  Will there be the jobs Armageddon that some have forecast, or will roles for the million or so people still on furlough at the end of August reappear in time to avoid that?  And at a more granular level on the same topic, here is the next question from our What Next webinar earlier this week:

Do you have to send all those who are on furlough a letter to say that the CJRS is coming to an end?

Yes, but there is also the question of what happens to them next.  Ideally you should already be well into that discussion with them, but if not, there is no hiding from it any longer.  The issue of new Acas guidance on this issue reinforces that point, though without very much supporting detail.

You should talk to staff about your plans as soon as possible, it says, and encourage staff to raise any concerns or problems about returning to work.  Where employees have been on furlough for an extended period, be seen to consider the question of their wellbeing on their return, perhaps a very brief re-adjustment period on reduced hours, and have a look at whether any refresher training may be necessary either for legal compliance or actual health and safety purposes.

Acas also now supplies a very brief template letter for this purpose.  Though this was clearly designed for pulling people off furlough while the CJRS was still in operation rather than on its expiry, it covers the same basic points:-

  • the date of return to the workplace;

  • restoration of full pay;

  • the accrued holiday position (not legally necessary, but a useful marker in circumstances where this may otherwise have been lost as a question);

  • a rehearsal of the measures taken to make the premises Covid-secure in the employee’s absence (again, not legally or contractually necessary but potentially of assistance in averting unnecessary anxiety over the return); and

  • who talk to in the event of any concerns or questions.

A similar communication would be appropriate also to end any flexi-furlough arrangements, though you could obviously skip (iv) and probably (v) since the employee will know about that already. In either case, reference to the end of the CJRS should be made to give context to the rest of the letter.

Other points worth including in your RTW communication could be:-

  • a reminder of contractual working hours (or notice of any change in them since the employee first went on furlough);

  • drawing attention to any new anti-Covid precautions the employee will need to comply with on his/her return, whether that is new rules or restrictions within the workplace itself or the need for a clear test the day before, etc.;

  • any other developments of significance within the business or the workplace so that the potentially already jittery employee is not hit with some massive surprise first day back; and

  • if you have the resources, an invitation to a brief check-in meeting with HR or line management and an introduction to any new team members before actually starting work.

All of this obviously assumes that the employee has a job to return to.  With some 1 million people still on furlough at the end of August, there is every chance that for many people that just won’t be true.  Those end-of-furlough letters will obviously need to look very different, as they will in effect be starting a redundancy consultation process.  Therefore they will need to explain:-

  • why the employer considers that its need for employees to do what that employee did has ceased or diminished;

  • the selection process by which it has gone from that conclusion to the proposal that that particular employee is at risk of redundancy (see below);

  • how it will hear the employee’s representations before any final decision is made and the other usual procedural safeguards around companions, etc.

In relation to (ii), it will be tempting to go direct from the fact that the business has done without that employee over the duration of his/her furlough without any important wheels coming off to his/her not being needed at all.  If that is done without any intervening consideration of whether the criteria by which furlough was imposed in the first place are also suitable for use in a redundancy selection exercise, that dismissal is likely to be unfair and may also be discriminatory.  That is particularly the case if furlough was imposed or granted for reasons which were applicable at that time (especially family reasons or sickness) but no longer are.  Beware also of using selection criteria which may disadvantage those put on furlough relative to those who were not, such as “recent experience” or “attendance at training” over the furlough period.

It may be that your original furlough selection criteria do indeed remain robust and relevant to a redundancy exercise perhaps over a year later, but you will need to be seen to test that proposition expressly before you can make any assumption that those who were put on furlough should necessarily be those put at risk, let alone made redundant.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 260
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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