Posted: Thu 21st May 2020
Bringing your employees back to work requires careful consideration about their safety and wellbeing.
Jill Bottomley answered questions about the preparations business owners need to do during today's Lunch and Learn.
She has 30 years' HR experience and owns HR Dept's Trafford and Warrington franchise.
What do business owners need to consider?
Jill suggested thinking about the planning process as a funnel:
The starting point is to look at the legal position. Employers have a duty of care to employees and that's the starting point in terms of the law.
Look at the government guidance on returning to work. There are detailed guides that cover construction, going to people's homes and other areas that might apply to your business.
Take professional advice from human resources and health and safety professionals when creating a return to work package.
Think about the impact changes will have on teams and have a collective discussion.
Have one to one conversations with individuals. It isn't a case of one size fits all. Individuals will have different issues and cause for concern, such as an underlying medical condition and childcare.
Jill added that the CIPD provided three key tests employers are advised to meet before asking employees to return to work:
Is it essential?
Is it sufficiently safe?
Is it mutually agreed?
What happens when employees don't feel safe?
Employees need to feel safe. This is the crux of where most employers have to manage the process of bringing people back to work.
"You need to get down to what they can't do or won't do," said Jill. "Get down to what's causing the problem."
This gives you an opportunity to put processes in place that overcome the issues.
It may be that individuals have a genuine fear. If employers believe that they've done everything they can and it's safe, and the employee still believes that there's serious and imminent danger, you need to consider the options.
"Furlough might not be appropriate because there's work they could be doing. You might agree on them taking a holiday or unpaid lead.
"However, they could bring a claim for constructive dismissal if they feel they are at risk. That's why documentation and the process is so important. The employer has to make reasonable adjustments," said Jill.
She suggested referring to occupational health professionals if you need to.
What's your advice around bringing staff back off furlough?
Employees go on furlough for three-week periods. There's no minimum period for bringing people back off furlough, so they can do some work and then be placed back in the scheme.
"You need to make sure how you're selecting who comes back," Jill said. "If down the line bringing someone back ends up in redundancy you could end up with a claim."
She added that the set up of the scheme is tough for smaller employers who may want to bring back employees, but don't have enough work to justify a full-time role and waiting until August for more flexible furlough is a problem for many businesses.
You can give employees a day's notice to bring people back - there's no minimum period. It's all about being reasonable and having good communication. From an employee's perspective, it's not a holiday, so they should be ready to come back to work.
Do normal employment rights apply?
Furloughed staff have the same employment rights, except for what's agreed in their furlough agreement. These rights include continuity of service, which impacts things like maternity and paternity pay, and they accrue holiday in the normal way.
"You can force holiday to be taken during furlough as long as you give them twice as much notice. You need to top up the pay to the normal level and it's worth getting guidance before you do it," Jill said.
If you want to modify an employment contract while someone's on furlough you have to carry out the normal steps.
"Have you got short-term working clauses in the contract already? If not, you could consult on introducing them. It may be that you're starting a redundancy process. You can start now, but you would have to justify why they wouldn't stay on furlough," said Jill.
Can you put "until further notice" in the furlough agreement?
An audience member asked whether you can tell employees they're on furlough until further notice or have to update them every three weeks.
"At the start, there were cases where people would have been told it's until further notice. It's back to communication and discussion," said Jill.
What if an employee doesn't want to take their children to school?
Jill stressed that you have to look at the individual and the circumstances. They might be a parent or carer that's clinically at risk or have other concerns. Think about the impact of the upcoming summer holidays too.
It's possible to come to an agreement for unpaid lead. One option is to use unpaid parental leave, an existing government scheme. It includes up to 18 weeks for children up to 18 years old that can be taken in one week blocks of a maximum four weeks per year or more if agreed otherwise.
How do you handle staff who are unhappy coming back because they don't want to travel?
Jill advised employers to talk to staff about why they don't feel safe and to see if the objection meets the test of being in serious or imminent danger. Work through the individual's circumstances and ask questions like:
How do they get to work? Car sharing is okay, which mitigates risk.
Can they ride a bike?
Could they start later to avoid rush hour?
How can you hire during the crisis?
Finally, Jill was asked if she had any advice around hiring during the crisis, particularly when you can't interview in person.
"You've got good talent out there. It's about how you're recruiting and marketing your vacancy. Where are people that may be furloughed at the moment that might be interested? Look at the role. Is the contract fit for purpose going forward?" said Jill.
Different forms of assessment are available, such as online personality tests. You could develop your own practical tests too, such as a spreadsheet task.
The Scottish government has released details of its approach to easing the coronavirus lockdown. Find out more here.