“I have an employee that is unwilling to return from furlough leave. What can I do?”
This kind of conundrum is now inevitable – after all, employees have been at home on 80% pay, with sunshine, for a few weeks now. So what are the considerations?
There are three tactics we see employees using to enforce the continuance of Furlough leave:
- Sickness or shielding because of sickness
- Co-habiting with a key worker and need childcare arrangements
- High risk health vulnerability.
If none of these apply then ensure you have a robust Standard Operating Procedure (SOP) to demonstrate safe working control measures, compliant with Public Health England, and that can be adhered to. It is only at this point that you can consider workers returning to work. If they refuse, and do not challenge your safety arrangements, then they could be in breach of contract, with no pay and open to disciplinary action.
On the other hand, a tactic being commonly (and often legitimately) deployed is to say they are vulnerable or live with someone vulnerable / key worker. So, in such circumstances it is not unreasonable to ask for written proof. On analysis, if the documentation is inconclusive then the circumstances can be challenged as a potential breach of contract.
Initially, put the SOP’s to them and re-iterate the need for their return to work.
The employee may rely on law that says they can refuse to return to work ‘if you have a reasonable belief that your health, safety and welfare is at serious and imminent risk’. If this is the case then explore their reasons fully, as they may well have a substantial rebuttal to your return to work intentions.
Try to resolve the situation amicably, there are always two sides to each opinion. Annual leave or unpaid leave are options, and may be preferable to disciplinary sanctions.
If, as an employer, you do consider forcing staff back to work, then take advice from us by calling 03456 122 144. Our Employment Safe Customers benefit from having our employment lawyers on speed-dial. You could too!