Can employees refuse to return to work if they feel unsafe?

Across the country millions of employees are preparing to return to their place of work as lockdown measures ease and businesses look to re-open.

16th September 2021

Recent news from US banking giant Goldman Sachs urging their 6,000 strong UK workforce to return to the office has caused many to question whether they feel safe or are willing to return. 

Furthermore, with the furlough scheme coming to an end on 30th September, it is likely that an increasing number of employers will ask their workforce to return to the workplace.

Many employees may still feel uncomfortable about doing so; however, can employees legally refuse to return to work due to fears of contracting Covid-19? Where does the law stand on the matter?

Miquelle Groves, Associate Solicitor at DAS Law, looks at what you need to know…

With lockdown measures being eased, my employer has asked me to return to work but I don’t feel safe.  Can I refuse to come back to the workplace?

This depends upon the situation itself. Your employer owes you as an employee a duty of care. The law is very clear on the fact that if you feel that your place of work is unsafe, then you would be protected when taking certain measures, an example of this could be refusing to attend.

The law is there to protect you when it comes to your safety, and you therefore should not be put to any detriment as a result of taking such steps. If you are treated unfairly, dismissed or you choose to resign as a result of you raising health and safety issues, then you may have a claim against your employer under the Employment Rights Act 1996.

Whether you would be justified in your claim would be dependent on a number of factors. The Employment Tribunal would consider factors such as whether your concerns and beliefs were reasonable and justified, whether employers had followed any guidance, and the extent of the danger you would be placed under if you returning to work.

The employer owes a duty of care to all employees, and if the employers have implemented all reasonable steps and is complying with all safety measures, and risk assessments have been carried out, then unless there is a medical reason for your concerns about returning, the employer may consider you to be on unauthorised absence that could result in disciplinary action.

I have been asked to return to work but do not feel safe using public transport.  Can I refuse to return or insist my employer pays/organises safe transport to and from work?

This is an unprecedented area, one that is unlikely to provide definitive guidance until cases begin to be held at Tribunal.

Although your employer does owe a duty of care to you and other members of staff, they do not have an obligation to arrange or pay for any safe transport to and from the work place (unless contractually obliged to) and this is generally not a reason to refuse to attend. However, as above, should you have any concerns around the safety of travelling back and forth to the work place, you could approach your employer and raise this with them.

Individual circumstances may be considered, and certainly relevant at a Tribunal, for example someone with an underlying medical reason may be more justified in their refusal to use public transport based on health and safety grounds and thus having the additional protection provided by the Employment rights Act.

I’ve been furloughed but I don’t feel safe to return to work, even with lockdown easing; can I refuse to return to the workplace and ask to remain on furlough?

As aforementioned, this depends upon the situation itself. It would be best for you to firstly raise any concerns that you have with your employer to begin with.  Furlough was put in place by the government under the Coronavirus Job Retention Scheme and it is to be used by employers when they are unable to operate, or have no work for you to do because of national restricti9ons and impact by coronavirus.

If you have been asked to return to work, this suggests that Furlough no longer applies and work is available. Failure to return to work without good reason could be classed as unauthorised absence.

My medical history makes me more vulnerable to the virus.  Can I refuse to return to work until I feel comfortable and safe to do so?

This will be dependent on the individual circumstances. You could firstly raise this with your employer informally if you feel the work place is unsafe. Should you not get the answer you had hoped for, then you could consider the more formal route of a grievance which could outline your concerns with regards to health and safety.

You could also consider speaking with your GP for some advice with regards to your medical history and whether they can give any recommendations or suggestions that you could put forward to your employer (if any). Should the risk be too high then a fit note may be an option. However, failure to have good reason for not returning to work could be considered as unauthorised absence.

If you do have a genuine reason and health concerns that affects your ability to return to work, best practice would be to ensure that you have a letter or fit note confirming the need to remain off work due to the risks.

I have recovered from Coronavirus - does this mean it is safe for me to return to work and interact with colleagues?

As long as you have followed current guidance from the NHS and have recovered, then it should be fine for you to return to work. However, it is still essential that you adhere to social distancing (and any other government guidance) at all times.

Should you get symptoms again, then you should follow the relevant NHS and medical guidance. It is also imperative that your employer has carried out health & safety and risk assessments to ensure that the workplace is safe for you and everyone else.

I wish to return to work but I live with someone who is clinically vulnerable. Can I continue to work from home until the threat of infection has passed?

In this situation it would be best to speak with your employer in first instance to see what their approach would be - they may continue to allow you to work from home (if possible). Should their response not be what was hoped for, then you could raise it formally as a grievance, outlining your concerns around health and safety. However, if you refuse to return without your employer’s consent, then this could be deemed as unauthorised absence and may be subjected to disciplinary action, or dismissal.

If I don’t want to return to work, can I negotiate with my employer to continue working from home? Can an employer refuse my request and is there a risk I might be dismissed?

Ultimately, this would come down to what the reasons are behind your request, and whether it’s sustainable for you to be working from home. Should you have any concerns about returning to work, then you could always run these past your employer to begin with and then escalate if required as above.

You may also be eligible to make a formal request to work from home; in this situation, your employer would have to justify any refusal by relying upon one of the specific statutory grounds.

With regards to dismissal, the law is there to protect employees who raise health and safety concerns, sometimes known as ‘whistle-blowing’. This is regardless of length of service, and if you are able to show that you have whistle blown then you are protected by the law.

Whistleblowing includes reporting any concerns relating to health and safety and you therefore should not be put at any detriment for doing so. Should you be dismissed you could potentially have a claim for an automatic unfair dismissal.

I believe I may be developing symptoms of coronavirus and have to self-isolate. Will I still get paid if I self isolate when my colleagues return to work?

You may be entitled to Statutory Sick Pay (SSP) as long as you are eligible. The government has brought in legislation which allows employers to pay employees who are off with symptoms and isolating from day one.

You may be eligible to claim SSP if:

  • You are self-isolating because you or someone you live with has coronavirus symptoms;
  • You are self-isolating because you have been notified by the NHS or public health authorities that you have come into contact with someone who has the virus;
  • You are self-isolating at home because you’re at high risk of severe illness from the virus – also known as shielding.

However, it is still advised for you to follow any sickness policies that you have in the work place such as how you report in to avoid any disciplinary action being taken.

Further information on this topic can be found on DAS Householdlaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.

About DAS Householdlaw

DAS Householdlaw can help policyholders create a range of documents such as ready-to-sign contracts (with built in e-signature functionality), agreements, policies and letters.

Customers can also access guidance on a wide range of legal matters such wills and probate, consumer rights, property lettings, divorce, contesting parking tickets, holiday and flight compensation, neighbour disputes and identity theft & fraud.

How to register

  • Visit dashouseholdlaw.co.uk
  • Enter the voucher code found in your policy documentation into the ‘First time using DAS Householdlaw?’ box and click ‘Validate Voucher.
  • Fill out your name, email address and create a password, and then validate the confirmation email sent out.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

The return to work: a guide for employers

Molly-Ellen Turecek looks at what employers need to consider when returning employees to work.

May 2021 Learn more
A summary of your consumer rights during the Covid-19 crisis

Whilst we try and navigate the ‘new normal’ there are a number of consumer issues which are causing concern. Simon Roberts looks at everything from shopping to holidays.

June 2020 Learn more
Online shopping in the time of Covid-19

Thomas Pertaia, Legal Adviser from DAS Law, explains what you need to know about your consumer rights.

May 2020 Learn more

Read more from the DAS Law blog

Employment disputes Can employees refuse to return to work if they feel unsafe?

Can an employee refuse to return to work due to fears of contracting Covid-19? Where does the law stand if employees decide to ‘take a stand’?

September 2021
Employment disputes , Growing your business , Protecting your business , Setting up a business Farming tenancies: what you need to know

Mark Woodman, Solicitor at DAS Law, looks at what farmers need to know regarding a Farm Business Tenancy.

June 2021
Employment disputes , Protecting your business How to keep your staff and customers safe when re-opening your business

As the country continues taking steps toward a return to normal, Covid restrictions remain in place in order to allow the reopening process to be conducted as safely as possible.

June 2021
Employment disputes Covid-19: Is your business worried about eviction?

The Covid-19 crisis has seen an unprecedented number of businesses facing collapse. But what happens if your business has an opportunity to get back on its feet only to face eviction from the landlord?

May 2021
Employment disputes , Protecting your business The return to work: a guide for employers

Molly-Ellen Turecek looks at what employers need to consider when returning employees to work.

May 2021
Employment disputes Is there a time limit for providing an employee with a P45?

As an employer, you are required to tell HMRC when somebody leaves or retires, and deduct and pay the correct tax and National Insurance.

May 2021
Employment disputes , Protecting your business The Return to Work from Covid: How businesses can stay on the right side of the law

Although lockdown restrictions are easing for many businesses across the country, health & safety and social distancing measures still apply.

May 2021
Employment disputes What you need to know about the gig economy

Allison Lewis, Head of Employment at DAS Law, looks at what you need to know about the gig economy.

March 2021
Employment disputes Can employers insist employees have the Covid-19 vaccine?

A number of UK companies recently announced that they will insist that all their employees must have the Covid-19 vaccine if they wish to continue working for them.

February 2021
Employment disputes Redundancy: an employer’s guide

Simon Roberts and Molly-Ellen Turecek from DAS Law look at seven things an employer needs to know about redundancy.

January 2021
Employment disputes Dismissal and Redundancy: 7 things employees need to know

Molly-Ellen Turecek and Simon Roberts look at what an employee needs to know about redundancy.

January 2021
General advice , Employment disputes Beware the perils of sharing colleagues’ virtual Christmas party antics on social media

Just because the party is being held online, it should still be treated as an extension of the workplace with both employers and employees conducting themselves appropriately.

December 2020
Employment disputes International Stress Awareness Week: your workplace rights

To mark International Stress Awareness Week, Jade Harrison, legal adviser at DAS Law, takes a look at what the law says your employer needs to do about workplace stress

October 2020