We haven’t really had time to write much in the way of insightful content this week because we’ve been so busy with redundancy programmes, but we thought we’d publish a list of up to the minute furlough and flexible furlough questions we’ve answered this week.

One of our employees says they can’t come back from furlough because they’re shielding, another says a family member is shielding – what should we do?

Shielding is due to be paused 1st August at which point we expect that people shielding can return to work provided the employer is able to ensure social distancing. Until then employees required to shield should supply a Shielding letter as evidence. You can keep them furloughed or on sick pay. I can’t see why you wouldn’t keep them furloughed at no cost to you for July, the argument starts to sway from August when you have to pay employer’s NI and pension.

What are the employer rights if an employee does not respond to a furlough letter?

Obviously try and make contact but if contact can’t be established they become unauthorised absent and we should write to them to inform them their pay will be stopped – myHRdept can draft a letter to that effect.

What are the employer rights if an employee informs us they are not in the country and can’t return?

Furlough leave and pay can be stopped as a condition of furlough is that they are available to work. You should investigate carefully the reasons why the employee can’t return before deciding on next steps.

What are the employer rights if an employee says they are living with parents and not wanting to return until September?

Furlough leave and pay can be stopped as a condition of furlough is that they are available to work. You should investigate carefully the reasons why the employee can’t return before deciding on next steps.

How should I respond to an employee who demands statutory parental leave to avoid returning from furlough leave?

There are procedures and timescales for commencing parental leave of any description. Step 1 is to look at whether people are within the timescales and then to follow the procedure as normal and as outlined in your policies (or to ask myHRdept for the statutory definitions) before deciding on whether a request should be granted or denied. Whilst all such requests could be reasonably high risk, in maternity cases these are very high risk and we would ask that you review the case with us before deciding to refuse a request to go on maternity leave.

Do we need a new agreement for part time flexible furlough?

Yes, a flexible furlough agreement which we myHRdept can write for you.

 Can we hire new staff is we have staff on furlough?

Yes, but not if it endangers the furloughed employee’s job. If for example that you agree that an employee should shield and remain on furlough you could cover the job with a temporary replacement, but a permanent replacement would risk an unfair dismissal/discrimination claim.

Can I require staff to temporarily work different hours e.g. 3 ten hour shifts instead of 5 six hour shifts (to help with social distancing)?

You cannot impose a change of hours as this would amount to a breach of contract, but you can try to agree these with employees – you are more likely to get agreement if you take the time to set out carefully and clearly what you would like people to agree to, and for how long. Remember that some people might not be able to do a 10 hour shift or change their working hours because of child care issues etc. Each case therefore is an investigation and a process: 1) Propose the hours you want in writing (myHRdept can help) 2) if employee agrees get on with it but if not consider why they don’t agree and if seems a reasonable objection move on to another person or consider a temporary hire to cover. myHRdept can help you review on a case by case basis.

Could we impose temporary hours changes by force?  

You would risk unfair constructive dismissals, but you may find some employees will obey the instruction. You can mitigate risk by genuinely trying to get an agreement first and by being able to show that other alternatives e.g. temp labour would not be effective and so there is a strong business case – as ever it is a balance of risk and myHRdept can help you review on a case by case basis.

If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515 to discuss your requirements or contact us and we’ll call you back.

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