What if my employees refuse to return to work?

The Coronavirus pandemic forced many employers to embrace working from home, and it had to be done quickly, without time to prepare proper paperwork to set out the guidelines and limitations. Other employers had to take advantage of the furlough scheme to be able to pay those employees who could not work from home or where, due to the impact of the pandemic, there simply was not the work to be carried out.

Seven months later, the guidelines as to whether employees still need to work from home are less clear. In addition, the Coronavirus Job Retention Scheme is now coming to an end and is being replaced by the less generous Job Support Scheme, and those employees who are unable to work from home can no longer rely on furlough to pay their wages.

This has placed employers in a difficult position; many employees do not want to return to work, and if their work cannot be carried out at home, the employer will need to consider their options carefully.

Ordinarily, refusing to attend the workplace would be fair grounds for disciplinary action and could potentially result in a dismissal. However, the pandemic has thrown the rule book out of the window, and employees may well have reasonable grounds for wanting to stay at home.

To stay out of an employment tribunal, employers will need to remember that communication is key. Employers should start by speaking with their employees in order to determine why they do not wish to return to the workplace. Open discussion should be encouraged, and employers should explore different approaches for different concerns. This is not a one-size-fits-all situation and individual needs will need to be considered.

Employees may have genuine health and safety concerns. Section 44 of the Employment Rights Act 1996 states that if an employee has a reasonable belief of ‘serious or imminent danger’ to their health and others around them, they can refuse to work. Covid-19 does pose enough of a threat for employees to have genuine concerns, and these should be given meaningful consideration.

Risk assessments will be crucial for managing these concerns. All employers should be carrying out regular risk assessments anyway, and these will need to be particularly thorough at the moment.  Employers should be identifying what work activity or situations might cause transmission of the virus, and they should be considering who could be at risk. Employers should also be deciding how likely it is that someone could be exposed, and they should be acting quickly to remove or control the risk. We are finding more and more ways to make the workplace Covid-secure, but at the very least, employers should be adopting one-way systems, displaying signage to encourage best personal hygiene practices, and ensuring a distance of two metres is maintained between workstations.

Having made the workplace secure, the employer should seek to resolve any remaining concerns the individual may have. Would staggered working hours help? Could additional workspaces be utilised to spread out staff? Could a rota system be introduced?

If the employee still feels unsafe, and a solution cannot be found, annual leave can be utilised as a short-term solution. Once this has been exhausted, sabbaticals or career breaks can be explored, as well as unpaid leave if there is a relevant clause within the employment contract. Whilst these options may not seem attractive to the employee, sadly, the alternative may be a dismissal on the grounds of capacity. This decision should not be taken lightly however, and employers will need to proceed with caution, particularly if there is any risk that a protected disclosure has been made.

Of course, there are exceptions; employees may have additional factors to consider. The Equality Act 2010 provides for a number of protected characteristics and prohibits discrimination in respect of the same.

Employees may be shielding because of a disability, or because they caring for someone with a disability. If an employer applies a requirement for all employees to attend the workplace, this will discriminate indirectly against those employees. Reasonable adjustments should be considered for these employees. Are you able to provide the employee with an isolated workstation? Are you able to offer them paid leave or suspend them on full pay? If an employee is self-isolating, they may be entitled to company sick pay or at least statutory sick pay. Ensure communication is maintained, do not make assumptions, and find out what the employee’s individual needs are.

Other employees may need to care for dependents who are either shielding or self-isolating. This will be relevant to those with elderly parents, and those with young children. Some schools may have staggered starting times, and others may have to close certain classes or year groups, or even close completely. Current case law still provides that women still tend to have more caring responsibilities and are more often the primary carer of the children of the family. Therefore, if an employer applies a requirement for all employees to attend the workplace, this will discriminate indirectly against these employees, too.  Emergency Time Off for Dependents could be explored in this situation, as well as Parental Leave. Unfortunately, neither of these entitlements provide paid leave, unless the contract stipulates otherwise, but employers can of course exercise their discretion in this regard.

As we discovered seven months ago, flexibility will be necessary, and employers should try to be accommodating and reasonable. Mental health will be an underlying factor in many of the scenarios above, and employees will need more support now than ever before. Where no alternative can be found other than to consider dismissal, employers should consult with employees thoroughly and document all communications. Policies should be relied upon and procedures will need to be fair. Ultimately, employers should seek legal advice if they are unsure as to how to proceed, as it is better for everyone to manage the process correctly, rather than to reach a resolution later.

Written by Alana Penkethman, Chartered Legal Executive, Parker Bullen solicitors