The return to work: a guide for employers

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 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 should 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 Covid-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 only from their own health and safety risk perspective but also to provide reassurance to their workforce, reintroduce them to the workplace and fulfil their duty of care to their staff. 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 unreasonably 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, understand the reasons why they are not willing to work 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. Again, an employer should tread carefully when such action and we strongly recommend that legal advice is taken prior to taken any action.

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.

What if an employee is refusing to work because they need have childcare issues?

If an employee raises that they are experiencing childcare issues and it is impacting their ability to work, the employer should firstly have a discussion with them and take into account their personal circumstances.

If an employee is unable to work due to childcare reasons they are able to request that they are placed under the Coronavirus Job Retention Scheme but employers can reject their request. Alternatively, an employee can request to use their annual leave or can request to take unpaid leave.

An employer should also handle these matters with care and should not put an employee at any detriment or dismiss an employee directly due to them exercising their right to time off for dependants and/or their right to take parental leave. We strongly recommend that legal advice is taken prior to taken any action.

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

If you are an insurance broker then you can quote and buy our products via DAS Connect, our E-Trade portal, or via your Acturis account.

About DAS Businesslaw

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Customers can also access guidance on a wide range of legal matters such as new legislation, employment issues, crowdfunding, tax and financial planning, and data protection. The service also includes numerous COVID-19-specific templates and guides for businesses.

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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.