If it’s becoming apparent that your employees’ duties, work locations or times when work is done need to change when they return to work after a period of furlough leave, how do you achieve it?
The first step is to identify whether you have the right to make the change in the contract, so start with what the contract says. Here’s a diagram of the various scenarios that are likely to apply – read on beyond the diagram for further detail on each one.
Whichever scenario applies, communication (and possibly consultation) will be required with impacted employees. There is nothing to prevent you doing this whilst an employee is on furlough leave. The only exception to this may be if a full time trade union official is on furlough leave and you are consulting with them in that capacity.
Scenario 1: The change provided for by the contract
Check whether you already have an agreement with your employee to make the changes you need to make in the form of flexibility clauses in their employment contracts. If so, check that what you need to change actually fits within the flexibility provided for: Employment contract terms are not interpreted generously in an employer’s favour.
If you are considering a change in duties, consider whether the change fundamentally makes the job a different one (looked at from the perspectives of both responsibility level and duties). If not, the changes may well be captured by the role and duties clauses in your contract.
How to make the change
Flexibility in employment contracts needs to be exercised ‘reasonably’ – and so consider what notice might be needed in the current circumstances. This will be viewed from the perspective of the employee individually, so you may need to plan some conversations if the impact could affect home life/childcare arrangements. If the change is to duties, ensure the employee has the tools, skill and knowledge to do the job.
You can download scenarios two and three from the ending furlough leave section on our Coronavirus advice hub.