This content was last updated 12 July 2021
On 12 July 2021, Prime Minister Boris Johnson confirmed that legal restrictions will end on 19 July in England. While cases are high and rising, the Government is encouraging everyone to continue to act carefully and remain cautious. Read FSB's response.
FSB members can access a detailed FAQ about the removal of coronavirus legal restrictions in England on the FSB Legal Hub. This factsheet will be updated as government guidance is updated further. Please log in to your member dashboard to view this.
The Coronavirus Job Retention Scheme (CJRS) will now remain open until 30 September 2021, with employees receiving 80 per cent of their normal salary for hours not worked, up to a maximum of £2,500 per month.
From 1 July 2021 employers must contribute 10% to this amount. For a summary of the change and example calculations visit the GOV.UK website.
The furlough scheme was welcomed by many small businesses as a way of securing jobs during the pandemic. As businesses slowly start to get back to business safely, employers need to effectively manage the return of employees from furlough leave.
If your small business has never dealt with furlough before, it’s important to follow the right processes to reintroduce an employee back into the workplace, so that you remain legally compliant.
We’ll walk you through what you need to consider when bringing your employees back from furlough, including notice periods and part-time (flexible) furlough.
What notice period do I need to give furloughed employees?
Where you have not already done so, you should consult with your staff on any new health and safety measures that will apply to them when they return to the workplace and any employee individual circumstances that need to be taken into account. As part of this assessment, you should also consider the impact of workers coming into the workplace on local transport and take appropriate mitigating actions (for example, staggered start and finish times for staff). Extra consideration should be given to those people at higher risk of serious illness if they contract COVID-19.
In terms of notice, your employees should be available to return to the workplace at any time, but you should give reasonable notice about returning to work where possible. Making a phone call means you can be confident that your employee is aware of the requirement to return to work. This also gives you the opportunity to address any difficulties or issues they may have, and how these can be addressed, including employee wellbeing. For example, they may have childcare commitments or health concerns.
You should confirm by letter the requirement to return to work and that furlough is coming to an end. This can also be via email where employees have access. FSB members have access to a template furlough letter (Notification of end of furlough and request to return to normal working arrangements) through the FSB Legal Hub. It should advise employees that they may be placed back on furlough after returning, should the business circumstances require it.
How do I choose which employees to bring back from furlough leave?
As you’re assessing how to operate your business post-lockdown, it’s likely that managing your cash flow, implementing social distancing measures and changes to business practices will impact your returning staff.
Whether you’re only choosing to open certain departments, or need to operate on a reduced workforce, be sure to follow guidance to reduce the risk of any claims against you.
Taking staff off furlough follows the same process you went through in determining who to place on furlough. You can determine who should return to work based on your business needs, provided that the criteria applied is not discriminatory based on employee protected characteristics, contrary to the Equality Act 2010.
When you’re deciding the criteria for which employees should return to work, this needs to be made fairly to reduce the risk of any constructive dismissal claims, and to ensure the process is non-discriminatory.
As more work becomes available, you may require employees with different skills or roles to return from furlough, and so you can gradually ask employees to return from furlough as needed.
Can furloughed employees return on a part-time basis?
You have the flexibility to bring furloughed employees back to work on a part-time basis or furlough them full-time, and, until July 2021, you will only be required to cover National Insurance and employer pension contributions for furloughed staff. From July 2021 the Government furlough grant is reduced in accordance with a tapering to the grant, but you must still pay your furloughed employees 80% of their salary for hours not worked, up to a maximum of £2,500 per month for the time they remain on furlough. The tapering to the grant means that you will need to contribute 10% towards furloughed wages for hours the employee doesn’t work from July 2021 (up to £312.50 per month) and 20% towards furloughed wages in August and September (up to £625.00 per month). Additionally, you will need to continue to cover National Insurance and employer pension contributions.
Furloughed staff can return on a part-time basis if this suits your business needs. There is no minimum period for which an employee can be furloughed in order to claim furloughed wages, but you will be responsible for an employee’s full wages for the days they do work. Employees can be furloughed on any working pattern or number of days/hours, subject to agreement with the employee.
What should I do if a furloughed employee is considered at risk?
You may have furloughed employees who are at greater risk of serious illness if they contract COVID-19. Clinically extremely vulnerable individuals in England and Wales may be asked to return to the workplace on the basis that the public health advice to shield for those individuals ended in England and Wales on 1 April 2021 and subject to the findings of your risk assessment.
As part of step four of the roadmap, the work from home requirement has been lifted. We await guidance on whether this change also applies to clinically extremely vulnerable individuals who are currently advised to work from home where possible. Employers should consider whether clinically extremely vulnerable individuals can take on an alternative role or change their working patterns temporarily to avoid travelling to work during busy periods, or to move to an alternative temporary role where they are better able to socially distance and follow other appropriate measures in the workplace. Alternatively, you may choose to keep those employees on furlough where they cannot work from home and where a risk assessment does not support their safe return to the workplace, subject to agreement with the employee. Where employees have a disability under the Equality Act 2010, then you have certain legal duties towards them.
You should already have carried out a risk assessment to ensure your workplace is COVID-19 secure, implementing the Government guidance relevant to your sector on working safely during coronavirus (COVID-19). A template COVID-19 risk assessment is available on the FSB Legal Hub. You may be required to carry out additional risk assessments to assess any risks to the health of vulnerable employees. In some cases, it’s advisable to seek occupational health or GP advice in relation to the employee, to assist you in assessing risks and identifying next steps.
Please note this is not a substitute for legal advice. FSB members should contact our 24/7 legal helpline for advice.
Questions about furlough?
If your business needs guidance during the furlough process, the FSB Legal Hub offers a comprehensive guide to furlough, as well as template letters and a 24/7 legal advice line to answer any questions about individual circumstances.
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