Employers now need to pay 10% of furloughed employees’ salaries; planning for the end of furlough; plus the government decision to require care home staff to be fully vaccinated to keep their jobs

It is looking highly likely that the furlough scheme will finally end on 30 September as planned. Also, as implemented recently, from 1 July employers are required to pay 10% of furloughed employees’ salaries, rising to 20% from 1 August. In this week’s article we look at how to manage the end of furlough, along with a recent tribunal case that highlights potential pitfalls. Finally we discuss the decision to require all frontline care home staff to be fully vaccinated and the implications for that sector.

So, the furlough arrangements are now as follows:

• From 1 July furloughed employees will continue to receive 80% of their pay up to the £2,500 maximum, but only 70% will now be paid by the government, with the employer needing to pay the remaining 10%.
• From 1 August government support will reduce to 60% of pay, with employers needing to pay 20%.
• The furlough scheme, plus all furlough payments, are scheduled to end on 30 September. After several extensions this now looks likely to happen.
• Employers will continue to need to pay employer national insurance payments, pension contributions and certain aspects of holiday pay, as has been the case for some time now.

Further details regarding these changes can be found on the www.gov.uk website, or follow this link https://www.gov.uk/coronavirus-taxon/businesses-and-self-employed-people

If they haven’t already, employers need to start planning for employees returning to their roles and, for many, returning to the workplace after a long absence.

Unless you have been living in a cave for the last 18 months you will appreciate that working arrangements are unlikely to return to the previous rigid 5 days in the office for significant numbers of employees. We have covered this subject in depth in a previous article, including how to plan for a hybrid type arrangement where employees’ working time is split between home and the office.  To read the article please follow this link:  https://186hr.co.uk/analysing-post-lockdown-business-strategies-and-putting-a-redundancy-plan-together/

As well as implementing changes to working patterns, redundancies may also be necessary in the new post lockdown world, with the increase in furlough costs from this month being a potential catalyst for companies to act. For a free guide to managing redundancies please see 8 Steps to Making Redundancies

Alternatively, 186hr has produced a comprehensive guide to making redundancies that includes detailed explanations of how to carry out each stage of the process, model policy documents, letters and other documents that have been provided by ACAS and CIPD along with 2 hours of consultation with a highly CIPD qualified, highly experienced senior HR professional to help you tailor the process to your organisational needs.

Once employers have made a decision that employees need to return to the workplace rather than working from home, even partially, they should give all affected employees reasonable notice of this, in writing so they can plan accordingly. Please contact us if you would like a template letter for this.

When requiring employees who have been furloughed or asked to work from home to return to the office there are several steps employers should take, as follows, to ensure this is managed in a reasonable way.

Although organisations clearly have the right to bring workers back to the office if they can justify such a decision, they should consult with employees regarding doing this safely, taking into account and resolving any concerns individuals have about doing so.

As part of the consultation process it is a requirement that employers consult specifically regarding the health and safety measures that will be taken to protect returning employees. Any such measures or procedures should be confirmed in writing prior to employees returning.

The organisation should review existing risk assessments and conduct specific new risk assessments regarding coronavirus and how to manage the return to the office e.g. regarding personal distance, ventilation, wearing of masks, staggering start / finish / break times, providing hand sanitiser etc along with assessing any other risks to returning employees. Remember that for employers with at least 5 staff such risk assessments must be in writing.

An outcome of the risk assessments may be that refresher or other training is needed, and this should be carried out prior to employees’ return wherever possible.

Any employees who are at increased risk from coronavirus should receive extra protection, and it may be that an outcome of the risk assessment is that high risk employees continue to work from home until it is safe for them to return e.g. if they have a medical condition that has prevented them from being vaccinated.

If the role of a vulnerable person who needs to continue to be at home indefinitely cannot be carried out remotely then, although tragic and regrettable it may be fair, and necessary, to dismiss the employee on the grounds of capability or ‘some other substantial reason’. Hopefully such cases will be very rare and employers should clearly take advice before doing so. Although harrowing for all concerned it is quite a straightforward and legitimate process.

Employers should recognise that returning to work may be an anxious time for employees, and act accordingly e.g. by providing FAQs on the main issues that affect them.

Employers may also need to proactively manage the annual leave of returning furloughed employees, who may have built up significant holiday entitlement and wish to take them at a time when the organisation needs all hands on deck. Clearly the organisation needs to avoid being short staffed at such a critical time.

There are many ways that holidays can be managed in a fair way that reduces the impact on the business e.g. it may be possible to carry forward up to 4 weeks holiday into the next holiday year if employees taking all of them this year is not ‘reasonably practical’ due to the pandemic.

Employers may also specify when employees can take holidays, as long as they give the employee at least twice as much notice of the requirement as the number of days they are required to take. For example, it would make sense to stagger holidays to ensure there is always enough cover, although this can cause resentment as who wants to take holidays in November?

Returning to the issue of requiring employees to return to the workplace, with around 2.5 million people still furloughed in the UK and a growing sense that whereas we may not all need to return to the office 5 days a week employees are likely to need to attend the office regularly in future e.g. as part of a hybrid type arrangement where some of the week is in the office (see our previous article https://186hr.co.uk/post-lockdown-will-we-be-back-in-the-office-working-from-home-or-some-form-of-hybrid/), it is foreseeable that this will lead to disputes as many employees will want to continue working either fully or mainly from home.

We anticipate that this issue will be contentious for many employees and lead to grievances and tribunal claims. In fact we have already had a couple of tribunals consider the issue and you may find the recent Rodgers v Leeds Laser Cutting Ltd ruling useful.

The case was brought under section 100 of the Employment Rights Act 1996, which provides employees with protection from dismissal for exercising their right to leave the workplace where they reasonably believe there is serious and imminent danger. This is likely to be the vehicle used by most employees who do not wish to return to the office.

Rogers called his employer and notified them that he would not return to the office for an unspecified but clearly long period due to the risk posed by coronavirus – he has vulnerable children with conditions that mean they have very low immunity to infection.

As Mr Rodgers did not return to the workplace when instructed, he was dismissed. He then brought a claim under the above section 100 of the ERA, citing the danger to his children of him returning to the workplace.

The tribunal rejected the claim and found that Mr Rodgers had not shown there was a serious and imminent danger in the workplace (to rely on the statutory protection, the employee must demonstrate that their health and safety concerns relate to their workplace, rather than being general concerns). They noted that the employer had conducted a thorough risk assessment and implemented social distancing, made masks and hand washing facilities available as per government guidelines and there wasn’t a proven increased risk from him returning, along with the fact that his role could not be carried out away from the workplace.

Mr Rodgers, on the other hand, hadn’t helped his case by admitting he breached self-isolation guidelines whilst isolating!

With regards to the dismissal process itself, Leeds Laser Cutting didn’t follow a reasonable procedure and if Rodgers had had the necessary 2 years’ service to bring a normal unfair dismissal claim he would likely have won his case on procedural grounds even though the tribunal found it was fair to dismiss him for refusing to return to the workplace. How frustrating would it be to make a reasonable decision like this but lose a claim due to the flawed process followed? Clearly it is crucial to always follow the correct processes and we can help you with that.

This judgement is good news for employers as it seems the bar for employees refusing to return to the workplace due to coronavirus concerns is quite high. If companies follow the above guidance regarding risk assessments, communication, consultation etc then it is likely to be deemed reasonable for them to require employees to return.    

As part of the post lockdown, post furlough plan clearly many workplaces and the markets they operate in will have changed significantly and therefore business strategy will need to be carefully considered, as mentioned above.

As part of this, whatever direction the organisation chooses, it is likely to lead to many needing to change, or vary, employees’ terms e.g. reduced pay, hours, changed working arrangements etc.

Where such changes are not contractual then normally they can be made without the need to consult with the affected employees, they simply need to be communicated and confirmed in writing within a month.

However, where changes are contractual such as the employee’s base for work purposes (although some may try and argue that this contractual term has changed due to ‘custom and practice’ during lockdown) they require agreement from employees either individually or collectively. If this is not forthcoming, according to CIPD (see www.cipd.co.uk) the changes are likely to be regarded as a breach of contract and risk a claim.

Generally the options for making contractual changes, according to CIPD, are as follows:

1. Consult, either individually or collectively to gain agreement.
2. Consult as above, and offer an incentive for employees to agree e.g. a new benefit or a one off cash payment.
3. Consult and then impose the change on those who do not agree. Clearly this risks a claim for breach of contract and constructive unfair dismissal.
4. Consult and then follow a process sometimes referred to as ‘fire and rehire’. This is where employers give notice of dismissal due to ‘some other substantial reason’ to employees who do not agree to the changes, under their existing contracts, and then immediately re-engage them on a new contract that includes the new terms. Clearly this is also a risky option but if the employer can justify the business reasons for the changes; show they considered any relevant alternative options; and acted reasonably in the process they stand a good chance of success at tribunal.

Another consideration for employers who are bringing employees back from furlough may be to introduce their own furlough scheme for use in future. Unfortunately there would be no government financial support for this but it may be worthwhile considering introducing such a policy so costs can be reduced quickly and legitimately if the business needs to do so in the future.

The level of payment can be decided by the company and be lower than 80% of pay but the employer would need to consult with the workforce before bringing in such a policy. It could be a legitimate alternative to making redundancies. Further details can be found in the CIPD’s excellent Q&A section on managing furlough that also includes:

• Selecting employees for furlough
• Applying for furlough
• Managing employees on furlough
• Pay during furlough
• Annual leave during furlough
• Sickness during furlough
• After furlough

Other options for employers to consider after Coronavirus job retention scheme (furlough) finishes if they need to reduce costs include redundancies, providing unpaid sabbaticals or other time off which preserves continuity of employment.

Also, by agreement, there could be reduced hours or working weeks, minimum / zero-hours contracts, temporary or permanent reductions in working days for all employees, alternate week working patterns, reduced bonuses, recruitment freezes or salary reductions. 

Moving away from the furlough scheme for the final section of this article, the government Department of Health and Social Care recently confirmed that people working in care homes need to be fully vaccinated in order to remain in employment or to be considered for employment in the future. We discussed this in our previous article https://186hr.co.uk/can-employers-insist-that-employees-have-the-covid-vaccine/

Clearly this decision is likely to cause significant recruitment and resourcing issues for a sector already on its knees regarding staffing, along with grievances, disputes and tribunal claims from disgruntled former employees. If this may be an issue for your organisation the above article provides the information you will need to consider.

In order to successfully defend claims from employees who cannot or will not be vaccinated employers will need to have followed a reasonable process regarding risk assessments, communication and consultation and then a reasonable dismissal policy.

Whereas employers are likely to win tribunal cases if they act reasonably, regrettably it seems there will be many unfortunate cases of extremely good, caring and committed carers who lose their jobs because they cannot be vaccinated for medical or other genuine reasons. This is a real shame but I am not sure there is any alternative.

I think there will be less sympathy for those care workers who lose their jobs because they choose not to get vaccinated as the requirement seems sensible to protect the vulnerable but still, this exacerbates the already difficult staffing issues in such businesses and I can’t help feeling it is quite a harsh outcome for someone simply because they are nervous about a vaccination. However, for what it’s worth, I personally agree with the decision.

Let’s hope the government agrees a temporary relaxation of the immigration requirements for foreign workers in this area to help the sector provide the necessary care, support and dignity to the vulnerable people in their care.

I hope this article has been useful. If you would like to discuss the ending of the furlough scheme or any other HR issues please contact us