Beyond the job retention scheme: what are the legal considerations?

27 October 2020

With advice in place for employers to undertake when re-opening the workplace, below, we look at some of the legal issues employers will need to navigate.

Criteria for recalling furloughed employees 

Care should be taken to ensure that the criteria used to determine who to return isn’t discriminatory or unreasonable. For example, you may choose to return only those with no childcare responsibilities. Despite the good intentions behind this decision, some parents may want to return to work. With mothers still statistically primarily responsible for childcare, this could be considered indirect sex discrimination.

If the role can be undertaken remotely, shielded employees should also be considered for a return to work. As shielded employees suffer from serious underlying medical conditions, these could amount to a disability under the Equality Act 2010, therefore exposing the employer to the risk of a disability discrimination claim if they are not considered for a return to work. 

Impact on Coronavirus Job Retention Scheme (CJRS) claim

Before returning any furloughed employees, employers must ensure they have been furloughed for at least 21 calendar days – if they are returned any sooner, they cannot be included in the employer’s CJRS claim. 

Notice to return from furlough

It’s sensible to revisit furlough agreements to check what notice you have to give an employee when asking them to return to work. If the agreement states a right to enforce an immediate return, consider providing some notice to give them sufficient time to prepare. For example, those employees with children or looking after vulnerable adults may have to make arrangements with their family to ensure that care is covered.

Ensure NMW rate rises are applied

Employers who have furloughed employees who are paid at or near NMW must ensure that when brought back to work, their pay rate is increased in line with 1 April 2020 NMW rate rises. Whilst furloughed, their pay will have been based on their last pay period prior to 19 March 2020 under the CJRS rules and therefore those rate rises won’t have taken place. 

Changes to T&Cs

Many employees on furlough leave will have had their contracts varied to reduce their pay in line with what can be claimed back under the CJRS. As those employees return from furlough leave, changes to their employment contracts will need to be considered if they are returning on reduced or staggered hours, reduced pay or to a different role. Agreement with the affected employees should be sought though before any changes are made. 

Whistleblowing issues

Employers should be careful about being overly zealous with disciplinary action against those employees who may choose to ignore their instructions on a safe return to the working environment.

Many employees will be incredibly anxious about returning to the workplace even though the Government decides it is safe to do so. Any concerns raised are likely to be on health and safety grounds, which would meet the qualifying criteria for whistleblowing. Taking disciplinary action of any kind could therefore expose the employer to the risk of a whistleblowing claim. In some instances, disciplinary action will be appropriate but should be clearly thought through with and with the support from the HR or legal team. 

Data privacy

As employees return to work, the overwhelming priority will be to protect and prevent the spread of coronavirus. However, that still needs to be weighed against their privacy rights under the Data Protection Act 2018. 

Employers may want employees to self-declare coronavirus symptoms or temperature test on entry to the workplace. In this case there is likely to be a lawful reason for processing this information (maintaining health and safety at work) but employers must ensure they have adequate safeguards in place to maintain the privacy of that information. Before introducing those measures, employers should conduct a Data Privacy Impact Assessment to establish what actions can be taken to mitigate the risks to employee privacy. 

If you need any help concerning any of these issues within your organisation, please contact 

Carolyn Brown Carolyn Brown

Partner, Head of Client Legal Services

Charlie Barnes Charlie Barnes

Legal Services Director