Employment law implications of returning to work for charities

As we move towards further ‘un-locking’ and with more of us returning to our physical places of work, we take this opportunity to consider the employment law implications of return to work. We have also passed a milestone in the Job Retention Scheme, as it is no longer possible to furlough a member of staff for the first time; this does not apply to a member of staff who has been placed on furlough before 10 June 2020. We include comment below on furlough-related issues from here.

Managing furloughed staff

You should ensure that you are keeping in regular contact with staff on furlough. Whilst they cannot undertake work for you, or volunteer for your charity, they can undertake training so it is worth considering whether the time afforded by the period of leave can be used to complete any outstanding training, or indeed undertake training to increase their skill set for their own or for the charity’s benefit.

You should also consider whether any accrued but untaken annual leave should be taken now, before any return to the workplace. Whilst regulations permit staff to carry over 20 days statutory leave into the next two leave years if they have not been able to take it due to coronavirus, it would be prudent to consider whether you want staff to accrue significant periods of leave, particularly if it may not be practicable for them to take leave in the near future.

Managing staff still at work

You may have staff who have continued to work throughout lockdown. It is important that the wellbeing of those staff is considered: have they been under particular stress or strain, whether from covering for absent staff, or for personal challenges? Have these staff had the opportunity to take a break, and if not can you accommodate a period of leave in the near future?

Moving forward

We face a continued period of uncertainty, not knowing when or how restrictions will be released, or what additional requirements will be placed upon us. Nevertheless, there are a number of steps that we can take to prepare our organisations and our staff:

Communicate

Take the opportunity, as soon as possible, to speak with existing staff, whether they are on furlough, or are still at work. Explore with them whether they are confident in returning to work or continuing to work with greater social contact. Identify any personal circumstances, including whether the individual is considered clinically vulnerable or extremely clinically vulnerable. Ensure that you identify any barriers to work, such as caring responsibilities, or anxiety.

It is important that you engage with staff and address their personal circumstances and concerns; seek to reassure and comfort staff, and explore with them whether compromise can be found, including for example home-working or varied hours and/or duties.  

You may find that you have staff who wish to return contrary to advice, and equally those who could return and for whom there is a need for them to work but are reluctant to do so. These situations present differing challenges that will need to be addressed prudently and sensitively, and with consideration of your legal obligations to staff including various duties of care owed to them.

Plan

Once you have spoken to staff and assessed their personal circumstances, you will be in a stronger position to plan for expansion of activities that may involve them (including the steps on the path of reopening any places of worship you are responsible for). Hopefully, by going through the process of engaging and consulting with staff, and reassuring them, you will have a staff body who are ready and willing to return to the workplace.

Once you have a plan in place, even if it is provisional and contingent on further guidance from the government and religious leadership, you should again speak to staff about that plan and their role in it. Taking the opportunity to engage with staff at this point will flush out any concerns and give you the opportunity to address and resolve before the point of implementation.

It is important that you engage with staff about your plans for reopening before you share those plans with the wider community. The reasons for this are twofold.

  • Firstly, engaging with staff as a first step ensures staff feel valued and considered, and that they don’t feel that they are an afterthought, or taken for granted.
  • Secondly, if staff object or challenge your plan, you do not want to have to publicly reverse plans, leading to both embarrassment on your point, and confusion on the part of your congregation.

It is also important that you document your discussions with staff, particularly if concerns are raised, together with any steps you have taken to address and accommodate concerns.

Phased return

From 1 July you will be able to bring back furloughed staff on a part-time basis whilst continuing to claim under the job retention scheme for hours not worked. Staff should receive their normal pay whilst working; any reduction to pay whilst on furlough will not apply to actual hours worked.

You will need to agree any varied working pattern with your member of staff and should record this in writing.

The development of the job retention scheme to allow part-time working allows organisations flexibility. It allows you to be supportive of staff and to accommodate any personal circumstances. For example, reducing hours in order to avoid rush hour may support vulnerable staff and give them confidence to return to the workplace. Part-time hours also provides the opportunity to “ease” staff back in, following what may have been a significant period of absence. 

Volunteers

When consulting with staff, do not forget volunteers. Your volunteers are likely to form a significant part of your activity. In the same way as you have engaged with paid staff, you should also engage with your volunteers. Your volunteers may not be able to return to their normal role, but may still wish to be active in your mission.

You may also find that, if your volunteers have not been working with you, may have found other volunteering opportunities elsewhere. You may also find that your employed staff have sought volunteering duties with other charities. Be sensitive to these other commitments and wherever possible work with the individual to find a way that means you can accommodate their obligations whilst returning to their duties with you.

Future furlough

As you plan for the future, be mindful that from August the job retention scheme is changing. In August employers will be required to pay employer National Insurance contributions (NICs) and pension contributions. From September, the government contribution will drop from 80% to 70% with the employer required to fund the 10% shortfall, in addition to employer NICs and pension. In October, the government contribution will again drop, to 60%, with the employer required to make up the 20% shortfall, in addition to employer NICs and pension. The job retention scheme will then close.

Careful financial planning will be necessary to determine the cost implications of the changes to the job retention scheme. Depending on the financial circumstances of the charity, and bearing in mind the inevitable drop in income during closure, it may be that difficult decisions will need to be made around future staffing, including the possibility of restructure, reorganisation and redundancy in order to preserve funds and reserves. The cost of staffing changes, including statutory redundancy payments, will need to be factored in, as will the time necessary to undertake meaningful consultation with staff. 

Conclusion

Whilst the ability to return to the historic track of activity may remain uncertain, considered communication and careful consultation with paid staff and volunteers can provide some clarity as we feel our way forward. For further up to date information, please have a look at our recently updated Q&As on our website here and here.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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