What do you do when your employees refuse to return to work?

As we process what the delay in lockdown lifting means for businesses, it is understandable that employees are feeling anxious about their return to work. There are many reasons that a worker may be hesitant to return to the workplace, and it is important for employers to manage each situation appropriately, and as a unique case. 

The best place to start is to put a comprehensive policy in place across the whole business, outlining the measures you have taken as a company to secure the health and wellbeing of all of your employees, and lay out all of your expectations for them as members of the workforce. This will put you in the strongest possible position when meditating with those reluctant to return. 

Inevitably you will be faced with some more complex scenarios, and here below I outline some of the issues you may come across, as well as the broader issues to consider when managing these types of employees.

Vulnerable employees

There are two categories of vulnerable employees identified by the guidance:

• Employees who are clinically extremely vulnerable and have been advised by the NHS to shield
• Employees who are clinically vulnerable such as those who are pregnant, or over the age of 70.

Those employees who are within the clinically extremely vulnerable category will have been advised to remain shielding until at least 31 July 2021. If these employees are unable to work from home, you can offer that they take Sick Leave in which case they will be entitled in most cases to Statutory Sick Pay (SSP). Alternatively, if they qualify under the Coronavirus Job Retention Scheme, you can place them on furlough, allowing you to reclaim part of their salary through a Government grant. 

If an employee is considered clinically vulnerable, be sure to open communication early, and discuss their concerns surrounding their return to the workplace. Your first consideration should be to see if their role can be adapted to enable them to work from home. If this is not a possibility, you are entitled to request they return to the workplace. However, you must carry out a robust individual risk assessment, and take active steps to further reduce the risk of the spread of Coronavirus for these employees. Based on the outcome of this risk assessment, and in the absence of the option for SSP which is not available to the clinically vulnerable, you may decide that keeping the employee on furlough, or offering an option of either paid or unpaid leave may be appropriate.

It is important that you explore all of the available options, and carry out all reasonable steps to accommodate your vulnerable employees. Failure to do so could result in a claim against you as the employer for personal injury, negligence or a breach of the implied duty of trust and confidence. 

You must also be mindful of any discrimination, as employees may also qualify as disabled under the Equality Act 2010 in which case you will have a duty to make reasonable adjustments. These employees would also have the right not to be indirectly discriminated against by any policies you choose to implement regarding the return to work.

Pregnant employees

As mentioned above, pregnant women (without complications) are considered to be clinically vulnerable and are advised to practice social distancing.

It is vital that appropriate protections are put in place for any pregnant employees within the workplace, as without them, requiring an expectant mother to return to work could amount to a breach of both the employer’s duty of care and the implied term of mutual trust and confidence.

If a pregnant employee were to contract COVID-19 from being in the workplace with insufficient measures in place for their protection, they could potentially have a claim for personal injury against the employer.

Employers have additional duties under the Management of Health and Safety at Work Regulations 1999 to protect the health and safety of new and expectant mothers in the workplace which means that you are required:

• To assess the workplace risks posed to new or expectant mothers or their babies
• To alter the employees working conditions or hours of work to avoid any significant risk
• Where it is not reasonable to alter working conditions or hours or avoid the risk, to offer suitable alternative work on terms no less favourable
• Where suitable alternative work is unavailable to suspend the employee on full pay.

Where you have taken all reasonable steps to protect your employee in the workplace, and where you feel confident you have met all of your obligations, you could insist on the employee returning to work rather than having to suspend the employee on full pay. 

It is important when making this decision that you consider the possibility of civil claims for stress and/or psychiatric illness. Such claims would be difficult to defend even if reasonable steps have been taken. It is vital that you consider each individual case on its own merits.

Employees who live with a vulnerable person

Where an employee lives with a clinically extremely vulnerable person, you should ensure you do what you can to support this employee as per the Government guidance. They will be anxious not to expose their friend/relative to additional risk and you should try to be both sensitive and flexible to their needs.

Options you could offer this employee if they cannot work from home would be furlough if they qualify, or a period of paid or unpaid leave until the vulnerable member of the household is no longer shielding.

You must be mindful that your employee does not suffer associative discrimination, as the person with whom they live may be considered disabled for the purposes of the Equality Act 2010 giving the employee protection from direct discrimination or harassment by association with a disabled person.

Employees with childcare responsibilities

If you are able to continue supporting your employees who are working parents to work from home, you would be well advised to do so. If this is not a possibility, your first step should be to consider if the employee is eligible for furlough, and possibly flexible furlough.

Flexible furlough would allow the employee to undertake some work around the childcare they may have available whilst allowing you to claim the grant for the hours they are not working.

If the employee does not qualify for furlough, you could suggest that they use their entitlement for unpaid parental leave. Employees are eligible for a maximum of four weeks’ parental leave per child under 18. This statutory entitlement is currently only available where the employee has one years’ service, but it may be in your best interest to adopt a flexible approach to this.

Employees who believe they are in serious or imminent danger

If an employee reasonably believes that they are in serious and imminent danger, they can refuse to return to work under s.44 of the Employment Rights Act 1996 (ERA). If the employee is then dismissed for their failure to attend work on this basis, the dismissal could be automatically unfair under s.100 of the ERA, and the employee will not need a minimum of two years’ service to bring a claim in the Employment Tribunal.

You must consider any such claim seriously and on a case by case basis so as to assess the individual employee’s circumstances. The perception of imminent danger by returning to work and potentially being exposed to COVID-19, is likely to be seen to be a reasonably held belief.

The best way to avoid such claims being successful is to show that you have undertaken a robust risk assessment, communicated all of the measures you have put into place to your employees, and demonstrate that these measures are being successfully carried out by all staff members.

Employees who unreasonably refuse to return

Where possible, you should remain sympathetic to any hesitation to return to the workplace. Where an employee can offer no reasonable basis for their refusal, you should exhaust all the available options at your disposal to resolve the employee’s concerns to protect their individual health and safety needs.

It would be reasonable for you to offer flexibility to their work hours to avoid busy travel times or suggest they make use of a period of paid or unpaid leave. Try to be creative in your approach to find a mutually agreeable solution, and keep in mind that severe anxiety could amount to a disability under the Equality Act 2010. 

Be sure that you keep clear notes and detailed documentation of the process you follow, options you put forward, reasons that your employee gives against these options, and any conversations that you have.

If you are unable to find a resolution, you will need to consider:

• The current public health advice
• Any specific reason that the employee is concerned about attending work
• Whether it would be discriminatory to:
  • Refuse home working
  • Take disciplinary action
  • Withhold pay in light of the employee’s refusal.

Considering disciplinary action

Before you take the next step towards disciplinary action, remember that dismissing an employee in response to their refusal to return to work could open the door to a claim for unfair dismissal if the employee has a minimum of two years’ service. Employers will need both a fair reason to dismiss and to follow a fair procedure prior to dismissal. 

If you are going to dismiss the employee on the basis of gross misconduct due to unauthorised absence, be sure that if the employee has raised legitimate concerns about returning to work that you have taken the necessary steps to show you have understood and attempted to remedy those concerns.

Post Covid-19 Return to Work Policy

It is vital that as a company you take all the necessary precautions and follow the required procedures within the Government guidance to make your workplace Covid secure, and then communicate these measures to your staff.

As I mentioned at the beginning of this article, the best place to start in order to mitigate many of these scenarios becoming contentious issues is to have a clear and robust policy in place and circulate it to all of your team before you invite your employees back to the workplace.

To help get you off on the right foot, I have written a comprehensive template policy document that covers all of these scenarios and more, and it is available for £99 + VAT here.

Following the most up to date Government Guidance, my Post COVID-19 Return to Work policy covers your management of:

• Sick leave arrangements in cases of isolation
• Work-from-home requests and successful remote working
• General workplace hygiene, travel and commuting
• Workplace testing programmes and vaccinations
• Furlough and requests for paid/unpaid leave
• Unreasonable refusal to return to the workplace

If you require further assistance or a bespoke solution for your workplace, please contact me emma.gross@spencer-west.com

This article and the policy template referenced are intended to provide general guidelines and should be used as a reference. They may not take into account all relevant local or national restrictions or laws and are not legal documents. Neither Emma Gross nor Spencer West LLP will assume any legal liability that may arise from the use of this policy. The purchase of this policy template does not make you a client of Spencer West LLP or Emma Gross.