Josie Broadstock is MD of Altum HR and writing a regular column for the Warrington Guardian during the pandemic

THE onus firmly sits with business owners to meet the challenge of arranging and facilitating the safe return of employees to the business, whether this be furloughed staff or staff who have temporarily been working from home.

According to ONS statistics released last week 40% of employees have now returned to work which leaves 60% still to return.

But what if an employee refuses to return from furlough?

The temporary changes of furlough are initiated through contractual variations, where the employee has agreed to reduce their contractual pay and the employer has waived their obligation to provide work for employees.

Employment legislation is very clear on the requirements of a contractual agreement obliging the employer to provide work and the employee being obliged to complete work. As such, where notice is given for a furlough agreement to end, the previous terms of the contract would revert the variation to the previous terms.

Although we are in unprecedented times with evolving processes being initiated through the government, there are elements of legislation that remain unvaried. As such, an employee can only refuse to complete their required obligations for a certain number of reasons, these include:

1 Health and Safety at Work Act 1974 – The employee has a reasonable belief there is an imminent risk to their health or safety. The employer must therefore do all they can to reduce the risks.

2. Equality Act 2010 – The employee may have protection under the act for a protected characteristic such as parental rights or disabilities. With the current circumstances, elements of protected characteristics may have significant obstacles that the employee is unable to control, such as the availability of childcare or shielding. The employer should not discriminate employees because of their characteristics, but instead should work to accommodate reasonable adjustments.

Ultimately, where employees refuse to return to work, there would need to be some form of communication to thoroughly understand the reasons.

Where necessary there may be cause for formal action due to failure to follow a reasonable instruction or breach of contract, however employers must ensure they are fulfilling all of their obligations towards their employee’s situation.

Where processes are followed incorrectly there is a significant risk of successful claims of health and safety breaches and discrimination claims.

As we always stress at Altum HR, communication is key. If employees feel they are being listened to and that you are taking their concerns on board this will help get your employees back to work in a way to meet both their contractual obligations and your obligations as an employer.

As ever, if you have any concerns, we are here to help. Just get in touch.