9:47 am, June 15, 2020
From July 1 a new Flexible Furlough Scheme comes into force, meaning that employers can bring their staff on and off furlough. As businesses are opening up again too, car dealerships and garages are asking more staff to return to work – but that doesn’t mean they are all keen to do so.
The harsh truth is, employees put on furlough were always supposed to come back and contracts should have said so. However, there are some cases in which employees should remain on furlough.
On Car Dealer Live 54, last Friday, motor trade legal experts Lawgistics answered audience questions pertaining to furloughing, part-time furlough, and redundancies, as it seems for many employers getting staff back at work is a struggle.
Whether you’re an employer wondering how changes to the system work or an employee who wants to know their rights, read on to hear what the legal team’s Nona Bowkis and Kiril Moscovchuk had to say.
Are the rules about staff on part-time furlough more relaxed?
Employers have worked hard over the last two months to not talk to furloughed staff to avoid being accused of fraud. However, now staff can work part-time and go back onto furlough that may be more challenging.
Bowkis explained that while a lot of the detail of the Flexible Furlough Scheme (FFS) has yet to be released, she can’t see there being an issue contacting employees while they are on this.
‘The issue around contacting employees before was very much an anti-fraud measure,’ she said. ‘What they didn’t want was companies putting people on furlough but having them working in the background.’
She added: ‘You can’t have them working five days but only paying them two, but random enquiries, I don’t think that’s going to be a problem.’
What can you do if an employee is refusing to come back to work?
Many employees have been keen to get back to work and up to 100 per cent pay but for many not working for 80 per cent pay has been a welcome change.
Lawgistics has been inundated with requests from employers who have been told by their employees that they either can’t or won’t come back. In some cases, employees are with a partner who is shielding and others have childcare issues.
Moskovchuk explained: ‘If they are shielding their partner, are they actually giving care to that partner or are they just concerned that they’re in the same household? As it stands at the moment, members of the same household who are shielding still, with precautions, can come to work.
‘There is not an obligation for them to stay at home as well. At the same time employers will have to show some flexibility and understanding. If there are a number of staff on furlough, those with genuine need will probably be told to go to the back of the queue to be called back to work if they have a general requirement. Also employers will have to uphold the standards of health and safety in the workplace, which is not particularly onerous.’
He added: ‘Ultimately, if someone needs to be called back from furlough and the employer dealt with the situation fairly and considered all of the individual circumstances, this can call you back from furlough.’
How do I record when my part-time staff are and aren’t working?
Record keeping has also been a very big part of the furlough scheme, to ensure your paperwork, contracts and communications are correct, but if you’re only paying staff part-time, do you now need to record that?
Bowkis said: ‘I think with anything furlough, yes is the answer. Although I’ve said the anti-fraud side has gone away, there will still be anti-fraud measures in place as HMRC will still want to check.
‘If your employees are only working two days a week, you’re going to need to keep some sort of register or record. HMRC will want to look up to five years after, so you need to have that information ready, as I imagine there will be a huge amount of investigation after this.’
What if an employee simply doesn’t want to return to work?
During the Car Dealer Live show, Bowkis and Moskovchuk both said they’d had recent cases where there had been an altercation between an employee and employer after the return to work, leading to the employee walking out.
Bowkis said: ‘In both these cases they had had a row with the employer and then walked out so we’ve had to write to the employee and say ‘after this altercation it was fine that you needed to go home and calm down but we expected you to come back the next day. You haven’t, have you resigned? We need to know if you have’.
She also spoke on the show about many employees not wanting to return to work, simply because they had enjoyed the time off on 80 per cent pay or had perhaps picked up extra work.
In the cases Lawgistics have been dealing with the employee was given a deadline to respond but told if they didn’t return they would assume they had resigned and organise final pay.
Can I choose employees to opt in and out of the scheme as work dictates?
Ultimately, yes, says Lawgistics – as long as the decisions are being made fairly and all the correct work has been done to make the workplace safe.
Moskovchuk said: ‘I would say yes, the decision is ultimately with the employer who is on or off furlough.’
Currently, you also need furlough staff for at least three weeks before they come back on and that will change to a one week from July 1, explained the legal advisors.
What can I do if an employee says it’s unsafe to come back to work?
With new guidance and requirements in place to ensure workplaces are safe for employees and customers, however it is likely some staff may still not feel confident in coming back to work.
One question on the show asked what an employer can do in this situation?
Moskovchuk advised to ‘make sure your workshop does comply’ and read the recently released guidance.
However, if you do meet all of the requirements, he said: ‘What looks like an unsafe place to him isn’t true because it’s compliant. That is then an unauthorised absence for which there is no pay and in the worst cases may lead to dismissal.’
Where do I stand with making an employee redundant because their job can be done by someone else?
In the case of one employer, he had made a valeter redundant after he found his role could be shared within the sales team, but the valeter then took this to a tribunal saying this means someone else could have been let go.
Moskovchuk said he couldn’t see a problem with this, and explained: ‘It is likely that many businesses will be affected, they will have to maximise their efficiency to make savings and stay afloat and I think that will be accepted by employment tribunals.’
Again, Moskovchuk says, these choices are down to the business. However, he warned: ‘Hopefully the need to make that saving has been explained to that valeter. That’s one point that businesses often overlook, that to go through a fair redundancy process they have to consult it.’
To watch the Q&A in full with all the details click play on the video at the top of this page.
You can find more advice on furlough, redundancies or preparing your dealership to open here.
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