Government guidance to work from home where possible has now ended – though some businesses are continuing the practice.  As an employer, you may wish to call time and have your staff to return to the workplace.

What if some of your employees are reluctant to return, whether on a full or part- time basis?

Staff may still have concerns about the spread of Covid, particularly in the workplaces where they will spend the majority of the day in the company of others. Some  may feel unsafe if they (or colleagues) are unvaccinated, or if they are medically vulnerable, or are living with a person who is vulnerable.

To help employers on their next steps when dealing with the return of employees we have put together guidance on some of the top things you should consider, including whether employees can refuse to return to work, and the steps employers should take where this issue arises.

Can an employee refuse to return to the workplace?

Yes –  but only in certain circumstances.

An employee may have legal protection from being treated less favourably if they reasonably believe that returning to the office would put them at risk or in serious and imminent danger. Any such belief has to be ‘reasonable’.

Employers should consider any refusal to return to work on a case-by-case basis, taking into account if the employee:

  • Is clinically vulnerable or unvaccinated, or lives with someone who is.
  • Suffers from mental health issues such as anxiety.
  • Has other higher risk factors, for example a physical disability or pregnancy.

Even if an employee does have one of the above concerns, this does not mean a refusal to return to work will necessarily be reasonable –  but employers should give this careful consideration. It may be prudent to carry out a risk assessment and if the employee is pregnant, done as a matter of course.

Employers should also be aware of possible claims around discrimination, especially where an employee has a disability. Employers are legally required to make adjustments for employees with  disability when reasonable. In some cases, allowing an employee to work from home may be considered a reasonable adjustment.

What can I do if an employee refuses to return to work?

If an employee does not have a reasonable explanation for their refusal to return to work, you may be justified in taking disciplinary. Refusing to follow a reasonable instruction could lead to a warning or even dismissal in some circumstances.

You would have to follow your disciplinary procedures for a failure by the employee to comply with your instructions and  their contractual obligations.

If you are contemplating taking disciplinary action against an employee, it is important to make sure you follow the right course of action. We can help avoid the time, expense and fall-out from the formal disciplinary route.

Government guidance on reducing the risk of spreading the virus in the workplace.

 

5th April 2022

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