Coronavirus: Can you be forced to return to work? Your rights as a furloughed worker

Lydia Smith
Writer, Yahoo Finance UK
Those who cannot work from home and whose workplace has not been told to close have been told to go to work by the government. (Getty)

Some 7.5 million people are covered by the coronavirus furlough scheme in the UK, which has been extended until the end of October to help prevent huge job losses over the next few months.

Furlough supports firms hit by coronavirus by temporarily helping to pay the wages of people who can't do their jobs. It allows employees to stay on the payroll, even though they aren't working.

All reasonable steps should be taken by employers to help people work from home, the government has said. But those who cannot work from home and whose workplace has not been told to close have been told to go to work. Workplaces that are allowed to be open include those involved in construction, manufacturing, logistics, distribution and scientific research. 

But does this mean your employer can force you to go back to work – and what are your rights as a furloughed worker?

Harriet Calver, senior associate in the employment team at Winckworth Sherwood, says the fact that an employee or worker has been placed on furlough does not impact on their statutory rights.

“So for example, any employee with over two years’ service would still have the right not to be unfairly dismissed and to receive a statutory redundancy payment and all workers on furlough would have the right not to be unlawfully discriminated against,” Calver explains.

“An employee's contractual rights under their contract of employment will also continue during furlough, albeit they will be varied by the terms of the furlough agreement.”

READ MORE: How to cope with being furloughed

The devolved governments of Scotland, Wales and Northern Ireland are sticking with the government's former instruction to "stay at home" and not encouraging people to return to work. In England, concerns remain about the risk of contracting the coronavirus once back in the workplace – and are questioning whether employers can force furloughed workers to return.

“While the furlough scheme has been extended until October, employees on furlough leave should assume that they may be asked to resume work well before then,” Calver says.

“Many employers will have expressly set out in the furlough agreement the process for bringing furlough to an end, for example by agreeing to review furlough at particular dates or agreeing to give notice to de-furlough, in which case both the employer and employee should respect this agreement.”

In the absence of an explicit right to bring furlough to an end, the employer would be expected to give the employee reasonable notice in writing that the furlough period is being brought to an end and that they should return to work.

“If a furloughed employee refuses to return to work in response to their employer's request to do so, then technically the employer may be able to withhold their wages for this period and subject them to disciplinary action for unauthorised absence,” Calver says.

“However, before taking any such action employers should discuss with the particular employee why they are not keen to return to work,” she adds. “They may, for example, be in a high risk category, have genuine health and safety concerns or have childcare issues, in which case they should only be required to return to work once any such concerns have been addressed and a safe working environment can be provided which complies with government guidelines.”

READ MORE: What does the furlough extension mean?

Everyone is being asked to distance themselves from other people to prevent spreading coronavirus further, but some people with underlying health conditions are being asked to take further precautions to protect themselves. People classed as “clinically extremely vulnerable” who are socially shielding during the coronavirus pandemic are urged to remain indoors and not return to work until at least the end of June.

“If an extremely clinically vulnerable person wants to continue to shield at home and not return to work, then it would be sensible for their employer to discuss with them if any adjustments can be made to enable them to work from home in their existing post or if they can be transferred to another role which might be capable of being done at home,” Calver says.

“If this is not feasible then it is advisable that the employee is allowed to remain at home. If the employer insists that the employee must return to work outside their home, then this may lead to claims being brought by the employee under health and safety legislation and under the Equality Act 2010 for disability discrimination.”