“When the Lockdown was first announced I closed my business and furloughed all my staff. As the Director I have started doing some work and I would like to start bringing some of my staff back from furlough but one or two of them are objecting. What can I do?”
The concept of Furlough is not one that existed in the UK prior to the Prime ministers announcement 20 March 2020. As such there is very little case law or experience to draw on when dealing with staff, particularly those who object. Your options will depend on what you are asking your staff to do and why they are objecting.
Can I call my staff back in?
Provided you are complying with social distancing requirements and are one of the essential businesses allowed to trade the short answer is yes.
Once agreed between an employer and their employees Furlough should be seen as a form of lay-off. Employees can therefore be required to return to work at the employers discretion provided reasonable notice is given.
Can my employees refuse to return to work?
Not all employees can be required to return to work. Indeed there are a number of valid reasons that may result in an inability to return e.g. an employee may have childcare difficulties if their school remains closed.
Furthermore, as an employer you have a duty under the Health & Safety at Work Act to protect the health, safety and welfare of your employees and other people who might be affected by your business. As such an employee may, in extreme circumstances, refuse to attend work where it is unsafe for them to do so e.g. if you have failed to put any or any reasonable social distancing measures in place.
What should I do, and is there a process I should follow?
There is currently no fixed or process that must be followed.
1. Where possible keep in touch with your employees regularly during furlough in order to maintain contact and to gauge their position This should provide some informal insight into staff attitudes.
2. Where you wish to recall employees, discuss this with them and notify them in writing. Provide as much as possible and at least 24 hours’ notice. To assist members we have produced a template letter that can be used and this is available on request.
3. Where employees are reluctant to return then inform employees that they should make any request to remain on furlough in writing. Indicate that they clearly explain the reason they wish to remain on furlough and including any evidence and confirm that this will be taken into consideration.
4. There is no requirement under the current furlough scheme to bring all employees back at the same time. Where the employee is raising a valid concern confirm in writing that they can remain on furlough
5. Where there is no valid concern, confirm the outcome of the application to remain on furlough. Consider whether you can offer flexible working on a temporary basis to deal with any issues such as childcare etc.…
6. Where an employee remains reluctant to return consider whether the employee could be allowed to nominate any period as holiday or whether to offer unpaid leave.
7. Where an employee continues to refuse the reasonable request to return to work you remain able to discipline the employee concerned. Given the current situation we would advise that an employee is only disciplined as a last resort and only after a full disciplinary process.
We would advise that you take advice before progressing any disciplinary process, not least because with certain categories of employees such as the extremely vulnerable (who should not be returning at present), those with disabilities, or pregnant women, there are additional legal risks to consider and the potential for automatically unfair dismissal and discrimination claims in the Employment Tribunal.
Conclusion
How employers should proceed remains uncertain. As an employer we continue to advise flexibility in how staff are managed. That said, providing you comply with the agreements between you and your employees, it is your decision how and when to re-open.
Remember, this is general information only any legal advice must be tailored to your particular circumstances. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Legal Ltd) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.
