Can workers refuse to return to the office?

Covid-19 | Covid-19 Advice | Employment & Skills | Legal

Advice by Kate Palmer, Associate Director of Advisory at Peninsula

Earlier this week, the Prime Minister suggested employers should now ask office staff to return to work, in messaging that experts have highlighted conflicts both with current official guidance and a suggestion from health secretary Matt Hancock that the right to work from home could be more strongly enshrined in law. Considering this can staff refuse to return to the office if requested by their employer?

Government guidance remains that individuals should work from home if they can but, generally, can return to work if required provided the workplace is COVID-secure. Therefore, unless they are still under advice to shield or subject to local lockdown rules, employees can be asked to return to the office and, for the most part, cannot legally refuse. However, the situation is likely not to be as clear cut as this. For many, the prospect of returning to work with the coronavirus continuing to pose a significant risk to the public may be very unsettling and cause them to act in ways they would otherwise not to. Therefore, while employers could consider disciplining staff who refuse to attend work, they should proceed carefully.

Working from home may have seen quite outlandish a few months ago, but now, in a post-lockdown UK, many employers will have had to find ways to implement it quickly. Therefore, it may be more challenging to argue that staff need to be in the workplace to fully do their job, especially if they have been doing it from home for the last few months. Employers should also bear in mind that employees who have worked for them for at least 26 weeks have the legal right to request flexible working, which can include homeworking. Fundamentally, it is up to the employer if they choose to allow home working. However, they may find it more difficult to justify not permitting it now. If employers are willing to allow it on a more permanent basis, they should put together a clear homeworking agreement.

In situations where a member of staff does refuse to come in, it is important to consider their specific circumstances before making any decision in how to respond to their actions. For example, an employee may fall into the high-risk category, or their partner may have been advised by the NHS to shield. Alternative, they may be struggling to facilitate childcare and concerned over how returning to work could impact on this.

In this situation, employers should aim to be as understanding and accommodating as possible. For example, giving employees as much notice as the company can of their impending return can help them to arrange childcaring issues. If they are still struggling, the employer could consider staggering their hours or maybe keeping them at home for longer.

It should be remembered that current government guidance outlines that people will generally no longer be told to shield from 1 August 2020 unless advised otherwise by the NHS. This means that while shielding individuals should be able to stay away until this date, employers can ask them back to work from next month. To allay their concerns, it may be more advisable to keep them at home for the time being if such an arrangement has been working. Companies can also demonstrate their commitment to safety by emphasizing efforts to deep-clean workspaces, making hand sanitizers and protective gear available, and restricting the number of visitors to the building.

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