How to unfurlough staff

23rd April 2020 – How to unfurlough staff

It may seem premature to think about unfurloughing staff, but some of our clients are already transforming – pubs, breweries and restaurants are becoming delivery outlets or drive throughs, garment manufacturers are making PPE, IT clients are perfecting homeworking platforms and so on. We’re in the midst of a forest fire but already shoots of new growth are emerging, we are indeed an entrepreneurial bunch. But if we need to unfurlough workers to meet new demands how do we fairly select who to return to work and who not to and what if staff are too nervous to return?

Unfurloughing is a brand new concept, there aren’t many (any?) existing guides to doing it and it’ll be a learning exercise for all of us. In essence however the process of unfurloughing is essentially the reverse of laying people off and so the principles should be the same. For employers restarting a site in entirety and bringing everyone back at once, the process will be simple, though we do suggest that a written record of unfurlough is kept i.e. an unfurlough letter for each worker.

Others will unfurlough bit by bit and that requires a bit more planning. Who do we bring back first, who do we leave on furlough? The principles of choosing people to lay off selectively are well established – employers must use fair and objective criteria to select who is to be laid off or made redundant. It stands to reason that the same principles should apply to unfurloughing and care must be made not to select people to unfurlough in a manner that’s unfair to those not chosen. It’s important to establish a clear ‘unfurlough strategy’ and communicate this well both to those unfurloughing and those staying furloughed.

So what does a fair unfurlough strategy look like?

I’ve had a think about some of the methods that employers might contemplate using.

  1. Workers not on furlough for 3 continuous weeks remain on furlough (but others can be unfurloughed.) This would seem fair enough because the CJRS grant is not payable for workers furloughed for less than 3 continuous weeks. It might not bring the right workers with the necessary skills back though.
  2. First in First to Unfurlough (FIFU.) This would seem a sensible option and is effectively a reversal of LIFO in redundancy situations – whereas in LIFO our most recent joiners are the first to be made redundant, in FIFU our longest servers are the first to return to work. If LIFO is defendable in law (which it is), surely FIFU must be too, though a lack of case law of course means that isn’t guaranteed. If it is ok though, and I think it will be, it will often bring back the most experienced staff first, and that could be a distinct advantage in a partial re-open.
  3. Skills/experience based selection.  This is necessarily a more involved process – typically employers will create a skills/experience grid for each area of the business to unfurlough, and staff in those areas will be graded, the ones with the highest scores brought back to work. This can be a time consuming exercise and there is room for subjectivity and argument (and legal challenge) if it’s not done well – in larger companies there’s always the risk of ‘manager’s favourites’ being picked to return, giving rise to potential discrimination claims. In more complex workplaces though, this could be the most effective way to decide who to unfurlough.

 

I suspect that the employer’s chosen strategy might be a combination of more than one method (perhaps 1 and 2 from the list) but whatever strategy is chosen we need to make sure that it is fair and objective.

The importance of being flexible

I would suggest that the employer makes clear what their strategy is and why and communicates this in writing to all staff, whether unfurloughing or not. Employers will need to be prepared to answer ‘why me?’ and ‘why not me? and be prepared to use flexibility in the event of an objection.

It may be for example that a worker not selected pleads to be selected even if they don’t fit the strategy, perhaps because they are in financial difficulty, or home life isn’t working out. Conversely there may be another worker from the same group who has been selected to return and who would rather stay on furlough – it’s up to the employer in these circumstances to take a view, and if by agreement staff requests can be accommodated (even if they don’t fit with the unfurlough strategy) then it would seem sensible to make an exception. For this reason I suggest that communications include an invitation to staff to make contact if they want to express an opinion on the decision to unfurlough them, or not to unfurlough them.

Inevitably the scenario will arise where an employer wants a worker to return to work, but the worker doesn’t want to. There are reasons where a worker’s circumstances will override the employer’s desire to get them back to work, particularly while the CJRS remains in operation. Examples include:

  • A worker has caring responsibilities e.g. a child at home with no-one else to look after them and no ability to place the child into school/nursery.
  • A worker has a letter from the NHS requiring them to shield for 12 weeks.
  • A worker has symptoms and is isolating in accordance with guidance.

 

In each of these cases the worker should not be forced to unfurlough, although employers may want to take reasonable steps to satisfy themselves that the reason being given is true and the period of further furlough is only as long as it needs to be.

Reassuring reluctant returners

Some workers may simply be scared to leave their sanctuary, particularly if unfurloughing means returning to the workplace. It is important for employers to take the necessary measures to assure workers (and indeed customers) that it is safe to return. This will include at least some of the following (subject to current .gov guidance):

  • Introduce temperature checks for workers arriving for work (this can’t be forced upon workers, but most will want to comply)
  • Ensuring social distancing – spacing workstations and angling these away from each other where possible
  • Fixing screens to workstations
  • Providing PPE – masks and personal screens if roles have inevitable social contact
  • Providing additional breaks for handwashing
  • Providing handwashing and sanitation stations
  • Organising additional cleaning of surfaces, door handles etc.

 

Clearly the list is not exhaustive.

I can easily imagine a scenario where despite the employer’s best efforts a worker may still not want to return to work, leaving the employer in the difficult position of having to decide on whether to force the worker to return under threat of disciplinary action or whether to relent, perhaps risking an outcry from other reluctant but complicit staff. There will be more to say on this topic I’m sure.

 

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