Since 19th July 2021, stay at home advice in England and Wales has been lifted and employees are no longer required to work from home. However, we have given lots of advice about this recently as many employees don’t want to return to work, and employers are now left wondering what to do.
In short, if you need your employee to return to work, and they don’t want to then ultimately it becomes a disciplinary matter, and depending how you deal with it, you can either make it a reasonable management instruction to return to work, and if they don’t comply, it is potentially a dismissible offence, or you could class it as unauthorised absence and again deal with it as a disciplinary matter. Both options are usually classed as gross misconduct, so can be a dismissal without notice.
However, there are a few areas that may require employers to tread a bit more carefully as follows:
- Section 44 Employment Rights Act 1996 – Employees with safety concerns
Arguably this is the main reason that the employees have been quoting as to why they object to returning to work. Employees are protected against penalty or detriment in the event of them acting on the belief that the workplace presented a serious and imminent danger to them.
It should however be noted that the grounds for the protection are rather specific. The law will only apply if:
– The employee genuinely believes that they are in serious and imminent danger; and
– The belief, whether demonstrably correct or not, is considered to be “reasonable”.
If all these elements are met, then taking any action against the employee, whether that be not paying them or dismissing them, could fall foul of the protection. However, the risks can be mitigated by ensuring that you have a suitable and sufficient COVID risk assessment, and this is updated appropriately, as done correctly, this document should show there to be no serious or imminent danger. It is also worth having documented conversations over the employee’s specific safety concerns and take what remedial action you can to alleviate their concerns.
- Section 20 Equality Act 2010 – Reasonable Adjustments
If employees have an underlying health issue that caused them to need to shield, or take extra precaution, then there is every chance that this could be a “disability” as defined in law, and if someone has a disability, then potentially you need to consider reasonable adjustments, and its not implausible that a reasonable adjustment could be to allow someone to continue working from home.
- Section 57A Employment Rights Act 1996 – Dependant Care Leave
If employees are having childcare issues, or have other caring responsibilities, then there is potential that they may need time off for dependent care leave, but just to be clear, this would be unpaid time off rather than necessarily a right to work from home.
However, as is always the case when considering dismissing an employee, it is worth seeking specific advice to ensure that any risks are mitigated and that you get specific advice tailored to your unique circumstances.
For a no obligation complimentary consultation with one of our experts, get in touch today on 0845 874 4086.