Employees who refuse to return from Furlough

When an employer decides to end furlough, an employee could refuse the employer’s request to return to work. What’s the legal position here and would the employer have grounds for their dismissal?

In this situation an employee is essentially refusing to carry out and fulfil their contract. This might provide grounds to commence disciplinary action in certain situations.

Establish the reason

Before going down this route, an employer needs to investigate the reason behind the refusal. Where an employee has reasonable grounds for refusing to come into the workplace, any disciplinary action 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.

In all these circumstances, disciplinary action would be unjustified. It could also amount to unlawful discrimination.

Health and safety concerns

In addition, an employee could reasonably refuse to return to the workplace if they had justifiable health and safety concerns, e.g. if an employer is 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.

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 an employer grounds to dismiss.

Dismissal must be the last resort where there is no workable alternative option. So, if the employee is able to work at home, then this should be allowed rather than insisting they come back to the workplace.

Also, an employer must be able to show what health and safety measures have been implemented. If they have gone above and beyond the legal requirements, the employee will be on dodgy ground.

In essence, the reason for the refusal to return to work is key. 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.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information.