With the government’s roadmap out of lockdown gradually being implemented, many businesses are reopening and introducing a phased return to work.

It is expected that by 21st June all workplaces will be open and there will be a return to normal working practices.

However, some employees may have health and safety concerns or prefer the homeworking arrangements adopted throughout the Covid-19 pandemic and therefore refuse to return to work when requested.

Need for employees to return to the workplace

To enable you to adopt a suitable approach to employees refusing to return to work, we advise thinking about why you require them to attend the workplace as opposed to working from home.

Inevitably, in some sectors working from home is not a feasible option so employees will be required to return to work from furlough without any room for flexibility.

However, in office-based work environments, there may be greater scope for employees to engage in homeworking on a regular or permanent basis.

Having said this, just because employees were able to perform their roles from home during the height of the pandemic, does not mean that they are entitled to do so indefinitely.

Many businesses have been able to effectively adapt their working practices to survive the pandemic but certain aspects may have suffered or been pushed aside to account for the circumstances.

For example, you may not have been able to offer proper training to employees virtually and despite technological developments, managers may have found it difficult to effectively supervise employees.

Therefore, even if employees can carry out their jobs from home, there may be business reasons which enable you to require them to return to the workplace once it is safe to do so.

Ensuring the workplace is Covid-secure

Before instructing employees to return to the workplace, you should take all reasonable steps to ensure that your workplace is Covid-secure.

There is some helpful guidance provided by the Health and Safety Executive on keeping the workplace safe as restrictions are eased.

We advise conducting a risk assessment to identify the specific risks that your workplace presents and the safety precautions that you can introduce to protect against such risks.

The general requirements across all types of workplace are social distancing, frequent cleaning, ventilation and a high standard of hygiene.

However, you may decide that further measures such as workforce testing and mandatory face coverings or PPE are necessary for your work environment.

Taking these steps to protect employees’ safety in the workplace and communicating the safety measures to employees may redress any concerns and make employees more willing to return to work.

Individualised approach

It is advisable to avoid general rules regarding return to work across the workforce, as any employee refusing to return to work will have their own personal reasons for doing so.

A duty of mutual trust and confidence exists between you and your employees, therefore you must act fairly and reasonably when dealing with these types of issues.

It is important to find out why an employee will not return to work as they may have a valid reason and failure to acknowledge and accommodate their individual circumstances may result in them bringing a claim against you.

Risk of Employment Tribunal claims

There are three main types of claim that an employee may be entitled to bring if you subject them to a detriment or dismiss them for refusing to return to work:

  • Discrimination
  • Health and safety
  • Whistleblowing

Discrimination 

Although the government has advised that those who are clinically extremely vulnerable no longer need to shield, they are still being advised to work from home where possible.

There is a strong possibility that employees who are clinically vulnerable will also meet the definition of disabled within the Equality Act.

A person has a disability for these purposes if:

  • they have a physical or mental condition with substantial adverse effects;
  • the condition has lasted or is likely to last for at least 12 months; and
  • the condition and its effects impact the individual’s day-to-day activities.

As an employer, you are under a duty to make reasonable adjustments to assist a disabled employee in carrying out their work.

If a disabled employee is refusing to return to work, you need to consider their individual circumstances and explore ways to aid their return to work and potentially offer alternative work arrangements if possible.

Failure to do this may result in the employee bringing a claim of disability discrimination.

Disability discrimination claims can be costly as there is no limit on the amount of compensation that can be awarded and there is also no length of service requirement so any employee can bring this type of claim.

Health and safety 

Employees have the right not to be subjected to detriment or dismissed for refusing to attend work because they reasonably believe doing so would put them in serious and imminent danger.

Therefore, there may be scope for employees to bring claims on these grounds if they refuse to return to work because they don’t believe that sufficient precautions have been taken to protect them from the risk of Covid-19.

Such claims have already been brought to the employment tribunal, and although they are first instance decisions and not legally binding, the tribunal seems to have taken a strict approach.

Any decision will always depend upon the specific facts of the case, but it seems unlikely that the tribunal will uphold a claim based on general concerns about Covid-19 if you have taken reasonable safety measures, such as social distancing and increased hygiene within the workplace.

Although the risk to health and safety caused by Covid-19 can amount to serious and imminent danger for these purposes, the risk must directly relate to the employee’s working conditions and not just the risk of contracting Covid-19 generally in society.

Whistleblowing

There is also potential for employees to raise a whistleblowing concern regarding their employer’s failure to protect against Covid-19 in the workplace.

Genuine concerns about Covid-19 in the workplace may be considered a ‘protected disclosure’ and therefore the employee will be protected by whistleblowing legislation.

If an employee has raised such concerns and they are subsequently disciplined or dismissed for refusing to return to work, they may bring a whistleblowing claim.

However, for such a claim to succeed the employee must have raised concerns about an endangerment of health and safety which they reasonably believe is in the public interest and not just concerns over their own personal safety.

Disciplinary action?

For the reasons outlined above, it would be a risky approach to launch straight into the disciplinary procedure if an employee refuses to return to work.

There is a particular risk if the employee in question has over 2 years’ service as they may be able to bring an unfair dismissal claim if they are dismissed as a result of their refusal to return to work.

Before you do anything, it is essential that you clearly establish the employee’s reasons for refusal and that you address any concerns they may have.

Whether disciplinary action is appropriate will depend upon the specific facts of each case as you must consider the employee’s personal circumstances and any claims they could bring.

If it is reasonable to require an employee to return because they have provided no reasons for their refusal and they do not have any protected characteristics which could lead to a discrimination claim, e.g. being disabled or pregnant, then you may be able to invoke the disciplinary procedure if they will not return to work in any capacity.

In this situation, the employee’s actions may amount to misconduct by failing to follow reasonable management instructions and their absence from work would be unauthorised.

As a safer alternative to taking disciplinary action, you could ask the employee to use holiday or take a period of unpaid leave, although this could still carry a risk of claims.

Summary

There is no definitive answer on how to deal with employees who refuse to return to work, as the approach you should take will depend on the individual circumstances.

If the employee has genuine and valid reasons for refusal, it is advisable to address the employee’s concerns and try to accommodate their needs as far as possible, for example incorporating homeworking if this is feasible.

If the employee’s refusal is completely unreasonable and unwarranted then disciplinary action or withdrawal of pay may be appropriate, depending on the circumstances.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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