[UK] Rights For Furloughed Workers: Can You Be Forced Back To Work?

20 MAY 2020

Currently, around 7.5 million people are covered by the coronavirus furlough scheme in the UK. To safeguard against huge job losses in the coming months, the scheme has been extended until the end of October. Yahoo Finance explores the rights that furloughed workers have.

Furlough supports firms impacted by the COVID-19 pandemic by temporarily helping to pay the wages of people who can no longer do their jobs. It lets employees remain on the payroll even when they are not working.

The government has said that all employers should take reasonable steps to help people to work from home, the government has said. But those who cannot work from home and whose workplace remains open have been told to go to work. Workplaces that are permitted to be open include manufacturing, logistics, construction, distribution and scientific research industries. 

Does this mean employers can force people back to work? What are the rights of a furloughed worker?

Harriet Calver - senior associate in the employment team at Winckworth Sherwood - says the fact that an employee or worker has been placed on furlough does not impact on their statutory rights.

“So for example, any employee with over two years’ service would still have the right not to be unfairly dismissed and to receive a statutory redundancy payment and all workers on furlough would have the right not to be unlawfully discriminated against,” Ms Calver explains.

“An employee's contractual rights under their contract of employment will also continue during furlough, albeit they will be varied by the terms of the furlough agreement.”

The devolved governments of Scotland, Wales and Northern Ireland continue to abide by the government's former instruction to "stay at home" and are not encouraging people to return to work. In England, there are ongoing concerns about the risk of workers contracting COVID-19 once back in the workplace and the question is being asked: can employers force furloughed workers to go back to work?

“While the furlough scheme has been extended until October, employees on furlough leave should assume that they may be asked to resume work well before then,” Ms Calver says.

“Many employers will have expressly set out in the furlough agreement the process for bringing furlough to an end, for example by agreeing to review furlough at particular dates or agreeing to give notice to de-furlough, in which case both the employer and employee should respect this agreement.”

Without an explicit right to bring furlough to an end, an employer would be expected to give their employee reasonable notice in writing that the furlough period is being brought to an end and notify them of their return to work.

“If a furloughed employee refuses to return to work in response to their employer's request to do so, then technically the employer may be able to withhold their wages for this period and subject them to disciplinary action for unauthorised absence,” Ms Calver says. She adds, “However, before taking any such action employers should discuss with the particular employee why they are not keen to return to work.”

“They may, for example, be in a high-risk category, have genuine health and safety concerns or have childcare issues, in which case they should only be required to return to work once any such concerns have been addressed and a safe working environment can be provided which complies with government guidelines.”

Everyone is required to distance themselves from others to prevent the further spread of coronavirus but to protect themselves people with underlying health conditions are being asked to take further precautions. Those classed as “clinically extremely vulnerable” who are socially shielding during the COVID-19 pandemic are urged to continue to stay indoors and not to go back to work until at least the end of June. (Link via original reporting)

“If an extremely clinically vulnerable person wants to continue to shield at home and not return to work, then it would be sensible for their employer to discuss with them if any adjustments can be made to enable them to work from home in their existing post or if they can be transferred to another role which might be capable of being done at home,” Ms Calver says.

“If this is not feasible then it is advisable that the employee is allowed to remain at home. If the employer insists that the employee must return to work outside their home, then this may lead to claims being brought by the employee under health and safety legislation and under the Equality Act 2010 for disability discrimination.”