How do you unfurlough staff then?

The simple answer is that you:

(1) work out what the business needs and then

(2) talk to the furloughed employees (ASAP!) about your proposed plans and what that might mean to them.

What you say to them will depend on step (1), but here are some scenarios that we are currently advising employers on with guidance on the next best step.

I don’t need their role any more

This sounds like a redundancy situation however, the furloughed employee is not necessarily the one who should face redundancy. If they carry out a role that other employees do, you may need to consult with all of the employees in the same or similar roles before determining who should go.

If they are in a role that nobody else does, it’s still not a foregone conclusion that you have a fair reason to dismiss them and so you should explore your circumstances and options carefully before taking any action that might get you in trouble.

I don’t need them to work as many hours any more

You may not be able to simply reduce the number of hours that you offer the employee once they resume their duties after furlough. You should check their contract of employment to identify their entitlements and what flexibility you have to change their working hours.

They have worked from home on flexible furlough, but I want them to work from our office again now

Spend some time considering why you need their role to be carried out from your office and prepare how you are going to communicate those reasons to your staff and counter any objections.

Don’t forget to also check your contracts to remind yourself what terms you have agreed with your employee before you start enforcing the wrong terms. You may find out that they haven’t even got a contract!

Your staff may assert that they should be able to continue to work from home because it has ‘worked’ for the past 18 months but the pandemic is an extraordinary circumstance, and just because home working has worked over the past 18 months, it does not give employees an automatic right for it to continue to do so.

We’re closing our office, so they can carry on working from home

Working from home may be a welcome change to some but don’t assume that it is the case. Some staff may not want to continue to work from their kitchen table on a permanent basis.

Even if your contract states that they may be able to work from home, this is not the same as imposing a requirement to do so. It may give rise to other challenges too in terms of workplace H&S, mental health and wellbeing and the provision   

They want to take 9 months’ worth of holiday entitlement in the last quarter of this year

Holidays have continued to accrue during furlough and so, if your staff have not taken all those holidays, they are entitled to them. However, you may have the right to refuse a holiday request if it conflicts with the needs of the business e.g., there will be inadequate cover due to other people’s leave. Your contract or holiday request policy may stipulate that they must give a minimum period of notice before the period of leave they have requested.

Whatever the needs of your business are at the end of furlough, plan your communications carefully and seek to agree a way forward rather than impose changes against your employee’s will if you hope to avoid conflict and have a positive working relationship in the future.

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