Legal

Managing the end of furlough

27 Oct 2020 By Alana Penkethman and Molly Dilling

As the job retention scheme draws to a close, Alana Penkethman and Molly Dilling explain how to accommodate employees’ varying needs 

In all aspects of the employment relationship, communication is key and it is essential to recognise that employees have varying needs. Employers should not apply blanket policies that apply to every staff member, as this may put those with protected characteristics at a disadvantage. For example, requiring all employees to work from the office places those who are shielding at a disadvantage, and may give rise to a discrimination claim, whether or not it is enforced. 

It is imperative that employers consult with staff individually to understand their specific needs and adjust their working practices accordingly. Here are some pointers on questions that may arise in the process of doing so:

How do you avoid an 'us' vs 'them' culture as those who have worked throughout lockdown reintegrate with those who have been on furlough?

It will be essential to rebuild the team ethos; this will involve reminding colleagues of their mutual objectives and ensuring that everyone is clear on their role within the team. 

Open communication between team members should be encouraged as it will be important to ensure neither set of employees feel any resentment towards the other and to make sure any hard feelings are aired.

How do you rebuild the trust of your employees, and help them feel the workplace is safe?

Businesses should ensure they undertake thorough risk assessments for individuals. They should also have an articulated and accessible Covid policy that is enforced and that everyone in the workplace abides by. Consult with staff to understand their concerns and seek to accommodate these where reasonable. 

It is essential to recognise that everyone has different views and feelings about their safety, so seek to understand these and consider what arrangements you can make to ensure that the employee feels safe.

How can I ensure the redundancy process is fair? And how should I approach permanent changes to employment terms? 

A redundancy process should be carried out by stringently following Acas guidance. It should also involve a proper consultation, a fair selection process using objective selection criteria, and consistent and effective communication with employees throughout. It is essential the process is done fairly to avoid any claims from staff. If you are concerned, it is best to take legal advice to ensure you are being completely fair.

If you decide to make permanent changes to employment terms as an alternative to redundancy, there are a number of steps you should be taking. Explain why these changes need to be made and consult employees, asking for their views and suggestions. 

It is essential that you obtain express consent from affected employees. We recommend that consent is in writing to avoid any misunderstanding. If employees do not agree to the changes, consider whether any compromises can be made.

How do I handle employees who only want to work from home? 

Consider whether employees working from home is an issue. Can the employee’s job be carried out effectively from home? Explore the reasons that the employee wants to work remotely – do they have concerns about returning to the workplace? Is there anything you can do to accommodate them?

Ultimately, the question is whether the employee can fulfil their duties properly. Consider any compromises that can be made. If the employee’s place of work in their contract is the office, they are not contractually entitled to work from home. Therefore, if you feel there are performance issues, you can reasonably require the employee to suspend their working from home arrangements.

Alana Penkethman is a chartered legal executive and Molly Dilling a trainee solicitor at Parker Bullen 

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