Must we agree to put an employee on furlough?Posted in : Seamus Says - Employment Law Discussion on 7 May 2021 Issues covered: Coronavirus; Vaccinations; Furlough
Scott: "We have a member of staff who's refusing to return to work until he's received both vaccines. He has been requested to be paid furlough until then. We have been careful and COVID-free and have not offered furlough. Do we have an obligation to furlough this member of staff?"
Seamus: Well, I don't believe that there's an obligation to furlough a member of staff. Under the Coronavirus Job Retention Scheme guidelines, there is certainly the ability for an employer to place an employee on furlough who would otherwise be on long-term sick leave. That is an option.
But look, you always have to remember that use of payments and use of the Coronavirus Job Retention Scheme is going to be audited by Revenue and Customs. So you're always going to have to have that justification or you will be required to repay the money or you could be found to have used the system fraudulently. So you have to take all of those things into consideration.
When it comes to an individual who says they can't return to work until they get both vaccinations, my view in relation to this is I did come across that and I did have to provide advices in relation to certain individuals that were perhaps shielding and what was the employer's obligations in relation to those employees. If they weren't in a position to offer furlough, could they let them use their holiday entitlement for a period of time? Alternatively, could they simply take time off without pay?
The slight risk here for this one would be that there seems to have been some sort of precedent in place if the person has not returned to work, and I assume the person hasn't been at work for a lengthy period of time. If there have been on-going payments under the furlough scheme for that employee, it might be difficult at this point to move away from that.
Again, the key thing would have to be that you do a risk assessment, and that has to involve some information and medical information from the employee as to why they are not in a position to return to work now. I think that there needs to be a clear letter from the GP or from the occupational health doctor to say that the employee isn't able to return to work until they've had both vaccines.
I'm aware of one of my clients that had a similar circumstance, and they ultimately took a decision that they didn't want to get into a row or difficulties with a member of staff and they did retain them on furlough. But at the time whenever they thought the furlough was ending, they were concerned and had meetings with the employee to say that they were going to have to return to work. And they felt that they had taken appropriate steps in relation to social distancing, PPE, and also an amendment of duties so that the person wasn't coming into contact with members of the public. So all of those steps had been taken.
Ultimately, for me, where the employer is of the view that the employee can return safely to work and wouldn't be at risk, I don't see why the employer would retain an employee on furlough in those circumstances. If there's a job there for them to do and it needs doing and there are no medical reasons as to why they can't, I wouldn't be of a view that the person should be retained on furlough.
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