DISMISSAL - 03.06.2020

Refusing to return from furlough

You’ve asked an employee who was placed on furlough to now return to work. However, they’ve refused your request. Do you have grounds to dismiss them in this situation?

Back to normal

If your business situation has improved, or you’ve been permitted to resume business operations, you may need to recall one or more employees from furlough (see The next step ).

Also, as furlough is now available until 31 October 2020 , it’s possible that you may want to rotate staff between work and furlough (subject to the minimum three-week period).

Refusing to return

Having made the decision to end furlough, an employee could refuse your request to work. What’s the legal position here and would you automatically have grounds for their dismissal?

In this situation your employee is essentially refusing to carry out and fulfil their contract. This might give you grounds to commence disciplinary action.

What’s the reason?

Before you can go down this route, you need to investigate the reason behind the refusal. Where an employee has reasonable grounds for refusing to come into your workplace, any disciplinary action on your part up to and including dismissal could potentially be unfair.

An employee could reasonably refuse to return from furlough because they:

  • are pregnant
  • are considered to be in an extremely vulnerable category, e.g. due to having an underlying health condition or being a certain age
  • have been advised to self shield
  • are displaying coronavirus symptoms or have been exposed to someone who has them.

Note. In all these circumstances, disciplinary action would be unjustified. It could also amount to discrimination on your part.

Health and safety concerns

In addition, an employee could reasonably refuse to return to your workplace if they had justifiable health and safety concerns, e.g. if you are unable to ensure proper social distancing measures or provide them with adequate PPE.

Where an employee raises valid concerns about their health and safety, any dismissal is likely to be automatically unfair.

Unreasonable objection

However, if the employee doesn’t fall into any of the categories above and you are providing a safe system of work, an objection to return from furlough could give you grounds to dismiss.

Tip 1. Dismissal must be the last resort where there is no workable alternative option. So, if the employee is able to work at home, you should allow them to do so rather than insisting they come back to your workplace.

Tip 2. Also, be sure you can show what health and safety measures you’ve implemented. If you’ve gone above and beyond the legal requirements, the employee will be on dodgy ground.

For a notice of return to work from furlough, visit http://tipsandadvice-personnel.co.uk/download (PS 22.12.03).

It will depend on why the employee is refusing. If they are pregnant, self shielding on medical advice, in an extremely vulnerable category or displaying coronavirus symptoms, you will be on dodgy ground. The same applies if the employee has justifiable health and safety concerns. Where none of these apply, dismissal must still be a last resort.

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