Covid-19: How do you manage someone who does not want to return to work?
Employment Law – How do you manage someone who does not wish to return to work after the Coronavirus Pandemic?
There have been a number of reports in the media recently of disgruntled employees who feel like they are being forced back into unsafe office spaces against their wishes. If you are an employer and thinking about re-opening your office, how should you handle employees who are reluctant to return?
It is important to handle any situation like this carefully. Many people are going through a stressful and anxious time and it is important to take into consideration all types of employee and possible concerns. You should try to get to the root of what their concerns are and why, as this will help you to manage and shape the way you handle the return to work process.
Do a risk assessment
First and foremost, do a risk assessment. It is a legal requirement under the Health and Safety at Work etc. Act for all employers to do this. All employers must assess the risks of Coronavirus and take steps to control those risks. This should include working from home wherever possible, ensuring good hygiene and making sure staff respect social distancing measures. It make also be necessary to provide staff with protective equipment.
Communicate
It is important to inform your staff of the Health and Safety measures you are taking to minimise any risk of them leaving and bringing a claim. Communicating why it is safe for employees to return to the office will minimise any concerns. Start the process as soon as possible and maintain regular communication, giving them all the facts and information that you have.
Are they high risk?
It is important to consider whether an employee is considered to be high risk. If they have a medical condition which could place them into this category, it is possible that that condition could be considered a disability for the purposes of the Equality Act and you will need to consider your obligations to make reasonable adjustments.
Can employees be forced to return to work?
There is no practical way to force an employee back to work; there are disciplinary options if they refuse, but keep in mind the legal protection that is available to employees.
Where an employee reasonably believes that they are at a serious risk of danger, they can refuse to return to work. If they are dismissed as a result of this, they would likely have a claim for automatic unfair dismissal and there is no qualifying length of service for an employee to make a claim on these grounds.
Minimise commuting risks
If your office is in an area where a lot of staff use public transport to commute, it is advised that you engage with employees at an early stage as to how they propose to travel to work. This will ensure that employees are aware of any potential concerns and can address them in advance. It may be necessary to provide support for alternative means of transport (for example reimbursing the cost of taxis to and from work).
What are my options?
If an employee refuses to return to work, you are under no obligation to continue furlough pay; that is entirely at the employer’s discretion.
If you have followed the above steps and still have an employee who is refusing to return, there are options available:
- You can agree to their request to remain furloughed.
- Offer them annual leave (if this is available)
- Offer unpaid leave
- Go down the disciplinary route
Disciplinary procedures in respect of an employee’s refusal to follow a legitimate management decision are still available to employers. You should think carefully before starting down this route as employees have additional protection in relation to health and safety.
You should be clear about any reasons for dismissal and maintain written evidence to show that it was not due to an employee’s protected conduct. Ensure that a fair process is followed and only terminate employment for a fair reason. Any reason to dismiss should be reasonable in all the relevant circumstances.
If you would like advice about employment law during the Coronavirus pandemic, please contact us and one of our experts will be happy to help.
