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Returning to work following a period of furlough leave

This article provides some practical advice on what to do in this situation and sets out some issues to consider when employees return to work…

A company has placed its employees on furlough leave for a period of 3 weeks or more and has claimed its employees’ wages in respect of this period under the Coronavirus Job Retention Scheme (CJRS). The company has now experienced an upsurge in work and so it has decided to ask a number of employees to return to work.

This article provides some practical advice on what to do in this situation and sets out some issues to consider when employees return to work following a period of furlough leave.

Before employees return to work:

  • If employees will be working from home when they return to work, consider whether they are set up with the appropriate equipment to facilitate this. For example, have they got a laptop, headphones to take calls etc. To the greatest extent possible, you should arrange for any equipment to be sent to employees in advance of their return to work.
  • If employees are unable to work from home, consider what measures can be implemented in the workplace (to the extent that they have not already been implemented) and/or changes can be made to working practices in order to adhere to Public Health guidance. For example, implementing a one-way system in the workplace, providing disinfectant and gloves to employees etc.
  • Check the existing furlough agreement in place with each employee and consider whether it is necessary to extend or curtail their agreed furlough leave period (subject to the three-week minimum period) in order to accommodate the company’s proposed return to work date.
  • Inform employees of the arrangements for their return to work.

Once employees return to work:

  • We recommend arranging a back to work meeting with employees. Depending on the circumstances of the business and the role of employees, this can be held in person or virtually (by way of a video call or telephone call.) During this meeting, employees should be notified of any changes to working practices and measures implemented for their safety during COVID-19.
  • If employees were subject to any disciplinary/grievance processes that were postponed due to COVID-19 and/or their furlough leave, then these processes should be resumed. If the process and/or any investigations have been impacted by COVID-19 and/or witnesses or management being on furlough leave, employees should be updated of this and given an idea of timescales.

Other considerations:

  • The current situation may have highlighted issues with workplace practices and/or issues with employees’ contracts of employment. Employers may use this as an opportunity to address these issues by reviewing and amending their template contracts of employment. For example, by adding clauses dealing with lay off and short time working where appropriate and/or amending job descriptions and job titles to provide greater flexibility in rapidly changing times.
  • It is possible to place employees on furlough leave on more than one occasion. Therefore, should the company discover that there is not as much work available as initially anticipated, employees can be placed on another period of furlough leave. Employers should consult with their employees about this and outline the terms of the proposed furlough leave in writing. In addition, employers should obtain employees consent to be placed on furlough leave. Where an employer has been unable to obtain consent from employees to be placed on furlough leave and it is proposing to place more than 20 employees on furlough leave, those employees who did not agree will be candidates for redundancy. Our view is that the obligation to collectively consult with employees will kick in at that stage (where sufficient numbers of employees are impacted) as redundancies are being proposed.

Ciara Jenkins is an Associate in the Employment, Pensions and Immigration Team and based in Manchester. If you have any questions please do not hesitate to contact Ciara at ciara.jenkins@weightmans.com or speak to your usual Weightmans advisor.

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