What if my employee refuses to come back to work?

On behalf of Attwaters Jameson Hill posted in Employment Law on Monday, November 16th, 2020

Amid a second national lockdown, millions of employees are back on furlough leave or working from home. The lockdown was ordered in an attempt to stem rapidly rising COVID-19 cases and related deaths, which are once again being closely followed and reported by the media.

In such a climate, it is likely that many people will once again be afraid to return to public spaces or travel on public transport following lockdown – which will have an inevitable impact on employees’ return to workplaces when lockdown ends on 2 December. So, how can employers deal with employees who are reluctant to return to work?

Addressing employees’ concerns

Employers must ensure that their response does not subject the employee to any detriment under either section 44 or 100 of the Employment Rights Act 1996. Section 44 provides for an employee’s right to protect themselves from danger in the workplace if they can prove that a) the danger is serious and imminent, b) they could not be reasonably expected to avert it and c) their belief in the presence of this danger is both genuine and reasonable. Meanwhile, section 100 asserts an employee’s right not to be dismissed as a result of raising health and safety concerns or for staying away from a dangerous workplace.

As a result, it is important to take your employee’s concerns seriously, be sympathetic with their reluctance and be proactive in trying to resolve their concerns. If your employee can work from home, then this is an obvious solution that works to the benefit of you and your employee alike. If not, other solutions might include: 

  • Letting the employee remain at home on full pay
  • Letting the employee remain at home on unpaid leave
  • Agreeing changes to the employee’s contract
  • Making arrangements to enable your employee to work in safe conditions
  • Dismissing your employee (although this is highly risky in the current climate).

What could happen if I dismiss my employee?

There is a high risk of your employee taking legal action against you for unfair dismissal. Usually, employees need to have served a company for at least two years before they can bring a claim against their employer for unfair dismissal. However, this is not the case for health and safety-related claims, which can be brought no matter how long the employee has been with the company. Furthermore, unfair dismissal claims relating to health and safety are likely to be subject to increased scrutiny by employment tribunals in the current climate, following recent Presidential Guidance from the Tribunals Judiciary stating that “Covid-19 pandemic-related claims alleging detriment or dismissal on health or safety or protected disclosure grounds under sections 43B(1)(d), 44, 47B, 100 and 103A of the Employment Rights Act 2006” will be among the cases to be prioritised in the coming months.

Reducing the risk of legal action

To reduce the risk of employees bringing claims against you, it is first important to ensure you are in full compliance with the government’s Covid-secure workplace safety guidelines and that you fully communicate the steps you have taken to ensure your employees’ safety. Secondly, you should establish clear processes for employees to raise any concerns about health and safety and take swift action to rectify any issues raised. It is also advisable to consider each employee’s individual circumstances and offer tailored solutions to their particular needs. For example, you could arrange for public transport users to work flexible hours to avoid peak travel times, or support other methods of travelling to work. If you have clinically vulnerable staff on your workforce, you could consider allowing these employees to remain at home while inviting others to return to work. And, of course, you could make use of the furlough scheme (which has now been extended to March 2021) to enable reluctant employees to remain at home on 80% pay.

HR experts, here to support you

Our HR team, headed by our experienced Partner Catherine Dean, has wide expertise in all aspects of Human Resources and can help your business deal effectively and sympathetically with employees who are afraid to return to work, without rendering yourself liable to claims. Please contact catherine.dean@attwaters.co.uk.

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