11 May 2020
Your staff are furloughed. So you could be forgiven for thinking that usual employment obligations no longer apply. After all, they’re doing no work for the company.
Surely this means that normal rules are essentially placed on hold for this period of time?
This couldn’t be further from the truth. Furloughed staff are still technically contracted to work for the company. This means that they’re still protected by employment law in all aspects of their management. Here are a few things to bear in mind…
Managing HR during lockdown
The Job Retention Scheme has been set up by the government to assist companies during this challenging time. By placing staff on furlough, you have a temporary measure that can help to avoid redundancies.
However, you can still be faced with a redundancy procedure. If you are, you still need to follow the usual rules regarding consultation, notice and statutory redundancy pay. Redundancy is a fair reason for dismissal but can be rendered unfair if you fail to follow fair procedure. Additionally, if not all employees in an organisation are to be made redundant, you must use clear and objective selection criteria when deciding who will be chosen.
Discrimination & harassment
It’s always important to remain alert to discrimination and harassment. However, the coronavirus crisis means it can be more difficult to pin it down.
You need to take action if individuals are subjected to bullying behaviour because of their nationality. This extends to management when they are deciding who should be furloughed. The same applies when making redundancies.
All choices should be made due to the specific needs and requirements of the business. DO NOT base these decisions on the characteristics of individuals in question. Such an action could lead to unlimited compensation from the employment tribunal.
How do you manage probationary periods during furlough? Well, first of all, you can place an employee part-way through probation on furlough. They may also have had to self-isolate or shield.
In either case, you can extend their probationary period. However, if there’s no contractual right to do this, you should seek their agreement first. Staff are unlikely to refuse if the alternative is dismissal.
Remember that employees need to have been on the company payroll on 19th March 2020. They must also have been notified to HMRC via an RTI submission on or before the same date if you want to furlough them.
Misconduct & disciplinaries
Despite the outbreak, it’s still important to monitor staff behaviour and respond accordingly. Allegations of misconduct need proper attention, especially if employees are working from home and not under direct supervision.
It may be more difficult to supervise staff at home. To this end, it’s advisable to put reporting procedures in place to keep track of performance and productivity.
Disciplinary procedures that had already started pre-furlough can be placed on hold while the employee is on furlough. However, it should be made clear that the procedure is only suspended, and will recommence when possible.
If you need further support with any of the issues raised in this article, call one of our expert advisers on 01455 858 132.
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