Employer rights in the pandemic


25-08-2020
Gemma Hill

As lockdown measures ease and offices reopen, employees are being asked to return to work.  But what rights does an employer have if a member of staff refuses to do so, for whatever reason? Employment law specialist Gemma Hill, a senior solicitor at law firm Hewitsons, discusses the issues.

As of 1st August, employers have been given more discretion to decide whether staff should return to work. They can now ask staff to come back to the office, potentially after having worked remotely for several months.

Whilst employers are now able to ask staff to return to work, demanding that they to do so as soon as restrictions are lifted, without having consulted with them, is likely to raise issues.  Employers should bear in mind that employees have had and are continuing to go through a stressful experience. There will be some that are fearful of returning to work and it may take time to reassure them that it is safe for them to return.

Companies should therefore be undertaking detailed risk assessments, considering how to implement social distancing and whether there are any other matters that need to be considered to enable them to bring staff back to work safely. There is government guidance available on safe working practices across a range of sectors, to assist with this. Employers should then communicate with staff about the steps they are taking to keep the workplace safe.

However, even where employers have undertaken the necessary risk assessments, with 2.2 million people in the UK classified as high risk, there are a number of employees who are still anxious about returning to the workplace. This could because they are classed as clinically vulnerable, they live with someone with an underlying health condition or they are just fearful of catching the virus. 

Some, whom we refer to as the ‘worried well’, may not be vulnerable but may still be fearful about returning to the office.

Where an employee reasonably believes that they are in serious and imminent danger when returning to work, they are protected being subject to a detriment, for example, disciplinary action or being asked to take unpaid leave, if they refuse to do so.

If an employee is resistant to returning to work, it will be important for a company to tread carefully. The key point to note here is whether the employee reasonably and genuinely believes that they are in danger. It does not matter if an employer disagrees.

That said, the individual’s belief does need to be reasonable. If an employer has done all it can to take steps to minimise the risks, has consulted with employees to understand their concerns and reassure them that they are not in serious or imminent danger by returning to work, an employee’s belief may not be reasonable. Communication and consultation are therefore key in getting staff back to work.

Another issue to consider is childcare. With the school holidays in full swing, many holiday clubs have not yet been able to open fully, if at all, and grandparents may be unable or unwilling to help parents with childcare.

Requiring an employee to come back to work, despite childcare issues, could result in claims for indirect sex discrimination, with women still undertaking the larger portion of childcare responsibilities in many households.

It is therefore important that employers communicate with their staff before requiring them to return to work. Companies should be communicating the steps they are taking to ensure their workforce are safe, listening to their concerns, the problems that they may be facing, and consulting with them before deciding what, if any action, to take.

Having consulted with staff, if there are any that are still reluctant to return, there are other steps employers can consider:

  • If the employee’s concerns surround public transport, can the employer offer extra car parking so they can avoid using public transport or arrange for them to temporarily work different hours to avoid peak time travel?
  • Is it possible to allow the employee to continue to work from home? This maybe particularly helpful not only to those who are anxious about returning but also to those staff that are currently unable to access the childcare that they need.
  • If the employee has been furloughed, is it possible for them to remain on furlough for the time being?
  • Could the employee come back on a phased return? This may enable them to build up their confidence and understand the new practices that have been put in place before returning full-time.

If you are still unable to find a resolution, it may be possible to insist on the employee returning to work provided you have suitable health and safety measures in place and have fully considered the alternatives.

However, each employee will need to be looked at on a case by case basis and legal advice should be sought as it may not be as plain and simple as you may have otherwise thought.

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