Returning to the workplace

14-03-2022


What can employers do if employees do not want to return to the workplace?

With the working from home where possible guidance now lifted, many employers can implement their plans to get employees back into their offices. However, many employees have been working from home for some time and may have mixed feelings about the continuing return to normality and the return of the daily commute.

Some employees may still have significant concerns about the spread of Covid-19, particularly in open plan offices or workplaces with a large number of employees or on public transport.  Certain employees may feel particularly unsafe if they are unvaccinated, medically vulnerable, or living with someone who is vulnerable.

Therefore, in planning for the future, businesses will need to strike a balance between many competing factors and adopt a strategy that reflects their own ethos and specific business needs.

We have been advising a number of businesses on these strategies and hybrid working policies and below we consider the most common questions about whether employees can refuse to return to the workplace:

Do employees have a legal right to refuse to return to the workplace?

Yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees a legal right to stay away from their workplace where they have a reasonable belief that the work would put them at risk of serious and imminent danger.

Under sections 100(1)(d) and 44(1A)(a), employees have specific protections where they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns with their employer.

Accordingly, if an employee refuses to return to the workplace, and they reasonably believe doing so would pose a serious risk to their health and safety, it would be unlawful to discipline the employee and any dismissal could result in an unfair dismissal claim.

Does this protection extend to all employees?

In practice, it is likely that this protection will only extend to those employees who have a particular reason to hold a reasonable belief in the danger to their health. This is likely to include those who are clinically vulnerable or unvaccinated that may be at much more risk from COVID-19 than other employees. It is also likely that the protection would extend to those who live with someone who is clinically vulnerable or unvaccinated.

In addition, employees with mental health issues, such as stress or anxiety alongside concerns about exposure to COVID-19, may also believe that returning to the workplace poses an imminent and serious risk to their health and safety and should be managed sensitively.

Employers must also be mindful of employees who suffer from long-term physical or mental illness, have a disability or who are pregnant as they have additional protections under the law. Again, this means that disciplinary action or dismissal against any such employee may amount to discrimination and should be avoided.

Can disciplinary action be taken against an employee refusing to return?

This depends on the full circumstances. If an employee does not have a valid reason to refuse to return to the workplace, then they are likely to have a contractual obligation to return to their previous position in their usual workplace. The employer would have to discuss the requirements and provide the employee with reasonable notice of when they would be expected to return.

Consequently, an employer could be justified in taking disciplinary action should an employee simply refuse to return to the workplace without any legitimate reason. In that case, employers must follow the disciplinary procedures for a failure to follow reasonable instructions or for absence from work if they are satisfied that there is cause.

However, we would always recommend caution in disciplining employees who refuse to return to the workplace as there can be a number of complex reasons and therefore open communication will be very important to understand the individual employees’ situation. Seeking legal advice on the specific circumstances can also avoid any tricky situations escalating.

If you would like to discuss any of these questions further, please contact our employment team on: 01635 508080 or [email protected]

If you would like to find out more information on our employment services for businesses click here.


Julie Taylor

Partner
Employment Law

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