Legal-ease: What HR needs to know about returning from furlough

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HR magazine speaks to Simon Kerr-Davis, employment counsel at Linklaters about the legal implications of workers returning from furlough in part three of this month's cover story.

Risk assessments

Organisations with more than 50 employees have a legal obligation to publish their risk assessments for how health and safety is affected at work. As many HRDs will have already helped prepare the physical requirements needed to be COVID-safe, Kerr-Davis says he is expecting to see more full risk assessments published in the coming months.

“I think it’s important not just because it's an obligation, but also because it starts to build that feeling of trust and security which is going to be absolutely vital to smooth returns, so people start to understand what their employer has done; what risks they've identified; and what they've done to deal with those risks. I think that is pretty fundamental to the trust building process.”


When people don’t want to return to work

Though all employees have the legal right to request flexible work, Kerr-Davis is not convinced that these requests will be as successful as people might expect as businesses start to ‘come out of hibernation.’

There is a risk that if the majority of workers return and only a few stay at home that business, colleagues or customers could be negatively impacted by the way work is distributed. If an employer can argue this then they have the right to turn down a flexibility request.

However, it is also vital to consider the specific reasons why people may be reluctant to return to work. Section 44 of the Employment Rights Act gives employees the right to refuse to attend work without detriment if they have the reasonable belief that there is a serious or imminent danger in the workplace.

“This balance point of ‘what is a reasonable belief that there is a serious and imminent danger’ is going to become really important, and it's going to come under scrutiny. The employment tribunals have said that they will give priority to claims which arise from section 44,” says Kerr-Davis.


Redundancy

Redundancies are almost a certainty for businesses coping with a recession. For HR teams navigating this process it is advisable for this to be carried out as openly, fairly and transparently as possible. In the event an employer is proposing to dismiss 20 or more employees, a consultation must be undertaken with employee representatives, for example trade unions or an elected representative. This consultation period must last at least 30 days. If proposing the redundancy of 100 or more staff members, the period is at least 45 days.

The redundancy process can carry the risk of being discriminatory if not handled correctly. Kerr-Davis says: “Employers running a selection process will need to be incredibly aware of the conditions people are suffering from, or whether they are pregnant for example, all of those things that would put someone within a protected characteristic.”

One suggestion he has for avoiding discrimination with redundancies is to adopt a scoring system based on range of objective criteria that indicates the valuable performance you need.


This article is an excerpt of the September/October 2020 cover story Back to life, back to (a new) reality: the workplace after furlough. The main text can be read here and in the September/October 2020 print issue.

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