The return to work: a guide for employers

Lucy Kenyon, Graduate Academy Executive at DAS Law, looks at what employers need to consider when returning employees to work.

20th May 2020
My employee is refusing to return to work. What can we do?

During the current crisis, it can be quite tricky to manage employee relations, especially from a distance. We are starting to see employers encounter an issue where they are removing employees from furlough and requiring them to return to the workplace. Some employees simply do not want to return.

Is it acceptable for an employee to refuse to attend work even in the current circumstances? Is there anything employers can do to resolve this issue?  This is a difficult issue and one where you as an employer, needs to tread carefully.

As a starting point (as is the case with most employment related issues), it is advisable to have a discussion with your employee to establish why they are refusing to return to work. It may be something that can be resolved informally after a discreet and reassuring conversation.

What if an employee is refusing to work because they are shielding according to government advice?

If the government or NHS has advised the employee to shield, then it is very likely that they are suffering from a condition which will amount to a disability for the purposes of the Equality Act 2010. They may have been issued with a letter from the NHS or their GP and employers can request a copy of this letter which will help to guide the employer in understanding the risk for that employee.

According to the government guidance, employees who are shielding are eligible for furlough, therefore it is advisable to place them on furlough, and if necessary make a claim under the Coronavirus Job Retention Scheme. Please note however that if the employee is off sick and on SSP, it is not possible for them to be furloughed. They would need to be taken off SSP first.

If an employer decides to discipline or dismiss an employee who is refusing to work because they are shielding, then this is likely amount to disability discrimination. Our recommendation is that legal advice is taken if you have any difficulties here.

What if an employee is self-isolating but isn’t required to do so?

If an employee is choosing to self-isolate but isn’t required to do so according to the government guidance, then the employer should have a discussion with them about their concerns and take into account their personal circumstances.

It may be that the employee is feeling anxious about the risk of infection, in particular the inability to control others’ actions outside of their own home. Whilst difficult, an employer must invest the time to understand the employee’s concerns and work with the employee to try to resolve them.

It is possible that the employee is suffering with a mental condition or symptoms of anxiety which is something that is likely to occur across all industries given the complexities of Ccovid-19 for all. Flexibility and understanding is needed.

If an employer suspects an employee may be unwell and need to speak to a GP, there is no harm in discussing this discreetly with the employee.

Most employees will be looking for reassurance that their employer has carried out substantial risk assessments into how social distancing measures are going to be implemented following lockdown. They will want to know how they can access the facilities, how they can use the lift (particularly if they have mobility issues), how are they going to avoid coming into contact with others on the stairwell as well working with others on site.

Employers must work on getting operating procedures in place not on from their own health and safety risk perspective but also to provide reassurance to their workforce to get reintroduce them to the workplace. Is there a possibility for the employee to continue to work from home? Would this assist the employee? If this can be facilitated, it ought to be considered seriously.

Where there is no clause in the contract of employment which gives the employee the right to full pay in a situation where they are not arriving for work, then the employer has the right to withhold pay if the employee is not available for work. If the employee is not unwell and not eligible for contractual sick pay or SSP, an employer may wish to gain the employee’s agreement to a period of unpaid leave for assurance.

An employer can begin disciplinary proceedings against an employee who is refusing to work, however in the interests of the employer-employee relationship this should be a last resort. The employer must discuss the employees concerns with them first and see if they can be resolved by reassuring the employee of measures that are being taken to ensure the safety of employees.

If the decision is taken to begin a disciplinary process, this should be fair and further information can be found on our post about disciplinary action. We strongly recommend that legal advice is taken prior to taking any action.

Do employers need to be wary of employee’s whistleblowing?

If an employee makes it clear to their employer that they cannot return to work because they are concerned about their health and safety, this could amount to whistleblowing. It is important for an employer to tread carefully, as an employer should not penalise an employee for whistleblowing, or making a protected disclosure.

An employee may state that they are not attending work because it is not safe to do so. It may amount to a protected disclosure if an employee states that they consider that someone’s health and safety is likely to be endangered.

The employer should distinguish between the employee disclosing that their health and/or safety may be in danger, and the employee refusing to work. They should listen to the employee’s concerns and address them, and if the employer does decide to withhold the employee’s salary or instigate disciplinary proceedings, it should be clear that this is in relation to the employee failing to attend work and not because they raised concerns.

An employer may find the ACAS guidance on this matter useful, it can be found on the ACAS website.

Employers need to ensure that their whistleblowing policies are up to date and accessible to employees. It is important to make sure that managers are trained on these policies so that they are able to spot when an employee may be whistleblowing and to ensure that no detrimental or negative treatment is used.

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.

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