What staffing options do I have when the Coronavirus Job Retention Scheme Grant Stops?
We are now nearly 5 weeks into lockdown. Many staff have either been asked to work from home or furloughed. In fact, Government statistics highlighted that by midnight on 20th April, 1,300,000 employees had been furloughed to the value of £1,5000,000,000. This is amazing.
However, at HR Elite we have also been discussing with a number of clients the ‘return from furlough’ and what actions can be taken in order to gradually bring some, not all staff back to work.
1. When deciding who should come back to work off furlough you need to ensure that you are fairly selecting the staff to return. In some cases, there may on be one person who fulfils a certain role and in this instance the decision is an easy one. All staff who have been furloughed would have been told they need to remain available to come back to work when necessary and therefore where you only have one person performing one particular role you need to make contact with that individual and make arrangements for their return. In this case, you need to confirm in writing that they will be returning to the usual terms of their substantive role.
However, there are lots of instances where the employer only needs some staff back who perform a particular role and where there are more staff than roles currently available you need to ensure you follow a fair selection for return. All staff furloughed have the right to be paid their usual substantive post salary and you cannot ‘cherry pick’ which staff you want back and which ones remain off on 80% of their salary. In this instance we suggest you use a fair selection process and ensure that this is documented. We recommend using something similar to what you would use in a redundancy selection situation. A selection matrix template has been provided to all HR Elite retained clients in their Coronavirus Pack (this can also be accessed through our on line portal).
In reality, and what we have actually found in practice is that you can discuss the return to work with the furloughed staff and often the selection is made for you by them deciding amongst themselves who wants to come back and who doesn’t. Where someone chooses to remain at home please ensure you communicate this to them in a letter so that it is clear that they have wanted to remain at home by choice. We don’t want any unexpected Employment Tribunals coming up at a later date for unfair selection for furlough that you will not be able to defend.
2. At present we know that the Coronavirus Job Retention Scheme Grant is available until the end of June 2020. This may or may not be extended. If it is not, and even when it doesn’t continue further, employers are going to have to make the decision on who and on what terms they can bring staff back. For some companies they will not be able to have everyone back on the exact same terms and conditions as they were on when they went on furlough. This may involve bringing staff back on part time hours, asking staff to take annual leave or asking staff to remain off but on unpaid leave. Employers can enforce annual leave but they need to make sure they have given double the amount of notice than the leave being taken to enforce this. Where an employer needs to consider part time working or a period of unpaid leave they will need to get agreement from the staff member. At times like this the staff member may be prepared to agree to this as the alternative option would be to be made redundant. Availability of other jobs are limited at the moment and therefore a staff member may rather retain their role on part time hours or take a period of unpaid leave with the hope that their role will return to its original terms and conditions at some point in the future and when the company they work for has made some kind of recovery from the impact COVID 19 has had on it. Where an employee agrees to this type of change a variation to contract letter must be written.
3. Ultimately, where part time work or taking a period of unpaid leave isn’t realistic for the employer, redundancies may be the only option. The usual redundancy processes must still be followed, allowing for a period of consultation, this can be done whilst the employee is on furlough. Once notice of redundancy has been served the employee will be entitled to their full notice pay and any outstanding untaken annual leave along with any redundancy payment. The Coronavirus Job Retention Scheme Grant cannot be used to top up this money, these payments will have to be made in the usual way and as if the employee was back at work. You are entitled to make the employee work their notice period if you want to.
At HR Elite we want to ensure that you get the correct advice and are able to follow the correct legal procedures. We envisage many Employment Tribunals coming from actions taken by employers during these challenging times but we are here to navigate employers through complex employment legislation in order that you do not fall foul of the law. Contact us on 01206 700690 or e mail at email@example.com for further information of advice on furlough, changes to terms and conditions, redundancy or any other HR matter.