While Furlough ends, the Vaccination Debate continues
It sometimes seems hard to remember life without Covid: furlough, testing and vaccination are part of our daily lives.
End of Furlough – More Unemployment?
The end of September sees the end of the furlough scheme. Since the start of the scheme, a total of 11.6 million people have been placed on furlough, at least in part. The latest figures show a decrease from 2.4m employees on furlough on 31 May 2021, to 1.9m employees on 30 June 2021. No doubt the figures will have significantly decreased again over the summer because employers can only reclaim 60% of salary costs.
Based on the latest submitted HR1 forms – the statutory documentation required when any employer plans 20 or more lay-offs – only 143 employers submitted forms with planned redundancies of a total of 12,687. This amounts to an 11% fall in planned collective redundancies from July 2021, and compares with the 155,576 planned job cuts in the early days of the pandemic in July 2020.
So it seems that the economy is full steam ahead – for now at least. That the furlough scheme has provided a lifeline to many businesses and kept many people in paid employment is not in dispute. Whether it will prove to have a net economic benefit, in the long run, can be one for the economists to argue about – including the extent of misuse/abuse of the scheme at taxpayer’s cost.
Furlough and Redundancy
One of the many issues which furlough has raised has been whether an employer should put an employee on furlough (or keep them on furlough) rather than make them redundant.
In the case of Mhindurwa v Lovingangels Care, the employment judge held that the employer did indeed have a duty to consider furlough when making someone redundant, and the absence of a reasonable explanation for not furloughing made the dismissal unfair.
The judge held that although the company had no work for the claimant, it had no way of knowing if that was going to change and ought to have considered whether she should be furloughed for a time to see if any other work became available.
It would be news to most companies that they should hold off redundancies and keep employees on furlough for a speculative period of time, just to see if “something came up”. Indeed, it could be sensibly argued that this would be an abuse of the furlough scheme and taxpayer’s money.
However, it was only a first instance decision only so is not binding. It is doubtful too many other judges would follow the same logic.
The much more controversial point is compulsory vaccination for employees. This is likely to continue to be an issue for some time to come.
In England, it is now compulsory for all care workers who work in care homes to be vaccinated – although this is being challenged by way of judicial review. Quite why care home workers have been singled out and not other health professionals, has not been explained. Interestingly, the governments in Scotland, Wales and Northern Ireland have not gone down this path.
Many employers would like to implement compulsory vaccination for their employees: in principle, it would make workplaces safer and there would be fewer absences due to the `pingdemic’. And in theory, you can make exemptions for those who can prove they have a clinical exemption: for example, because of previous adverse reactions to vaccinations or prophylactic treatments.
But compulsory vaccination does seem a step too far for many in a free democratic society. It would require employers having to take a view on sensitive medical information. It would also require keeping track of paperwork proving vaccination status and treating everyone the same.
Would you then want to sack someone for failing to vaccinate? Even if you did, could you convince an employment judge that this was a fair reason for dismissal? Faced with these questions, most employers shy away from compulsory vaccination. But with `vaccine passports’ becoming more common in other walks of life and with office working coming back to life, perhaps it will become more prevalent in the workplace after all?
If you have any concerns, please give me a call.
(c) Ben Thornber, Thornber HR Law