What Can Employers Do If An Employee Refuses To Return To Work?

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As businesses prepare to re-open over the coming weeks, a new concern that employers are being faced with is the fear or anxiety that some of their workers may feel about returning to the workplace.

As a result, some employees may even refuse to go back to work and request to continue working from home for the foreseeable future, if they are able to and have already been doing so.

Section 44 of the Employment Rights Act 1996 states that, if an employee (this does not cover self-employed contractors) has a reasonable belief of ‘serious or imminent danger’ to the safety or health of themselves or others, they can refuse to work on the grounds of this act.
They can refuse to attend work by staying at home, walking out of the workplace if they are already present or choosing not to do certain tasks.

Hence, if an employee is refusing to return to work citing concern over the spread of coronavirus, they have the legal right to do so.

What does this mean for employers, and how can they overcome this issue?

Are you confident that your business has taken every step to get COVID-19 secure?

The most important thing you can do to reassure all your employees that the workplace is safe and that you are taking the threat of COVID-19 seriously, is to take the appropriate steps to get COVID-19 secure.

Once all the above has been completed, you should communicate this to your workers so that they can have peace of mind and clearly see that you are taking the threat of COVID-19 seriously.
Employers with more than 50 staff should also they ensure that they publish their risk assessments and display a COVID secure symbol.

It’s also important to note that the HSE will be doing random spot checks to ensure that workplaces are up to a minimum health and safety standard. If not, then the HSE can issue the business with a sanction.

If your business does not have the funds to get COVID-19 secure, then you should make an informed decision as to whether it is safe to re-open.

If you need any support with this, we offer a COVID-19 Secure Package which includes a generic Covid risk assessment, signs, online training, a pandemic/coronavirus policy and a general Covid and health and safety information document.

We can also conduct bespoke COVID-19 risk assessments by having one of our qualified health and safety consultants visit your site, assess the premises, report their findings and help implement the correct safety measures.
For further details, call us on 0845 2626 260 or email [email protected]

Assess your employee’s concerns about returning to work on a case by case basis

You should take every employee’s concerns into careful consideration, especially if their individual circumstances differ from the rest of the workforce.

For example, an employee who is shielding, should not be encouraged to return to the workplace if it would put their health at risk.  For those employees who live with someone who is shielding, they should ensure that they stringently follow social distancing guidance and you should ensure that your business should be able to comply with this.

On the other hand, an employee who is refusing to return to the workplace because they would rather work from home as it is more convenient for them, should be having a different conversation.

In either case, as an employer, you need to take the time to listen to their concerns and have a transparent conversation with them about it to ease their fears and come up with a fair solution.

It may be that you ask employees who want to work from home permanently to submit a flexible working request.  This may result in you allowing them to work remotely on a permanent basis or, if this is not feasible on one of the permissible grounds, then you decline the request and the employee is to return to work as normal.

If it’s a childcare issue, then you could consider putting them on dependent care leave (which is unpaid) or leave them on furlough for a short period for them to attempt to make alternative arrangements.  However, you must remember the furlough scheme closes for new entrants from June (last date to furlough someone is 10th June) and with effect from August employers then need to pay some contribution to the costs of furlough, which may have a bearing on your approach.

Make a well-informed decision about bringing employee’s back into the workplace

As with any grievance or HR/Health and Safety issue that is raised in the workplace, you need to carefully consider what the fairest course of action is whilst remaining compliant with the law.

When an employee approaches you with concerns about returning to the workplace, the question that employers need to ask themselves is – if your employee was to make a claim against you and take their concerns to a tribunal, would they have a strong case?

A strong case would fall on the basis that the employee’s health and safety would be at risk and this would be true if you have not taken any steps to protect them against the spread of coronavirus.

However, if you are confident that you have provided them with a safe working environment and they are still refusing to return to work without a valid and justifiable reasons, then you can proceed with disciplinary action.

Further details on how to do so can be found here: What Are The Different Stages In A Disciplinary Process?

We would always advise that you seek professional advice from a qualified HR consultant on the specifics of any case before you proceed with any disciplinary or grievance to ensure that you aware of your employee’s legal rights and your responsibilities as an employer.
We can support you through every step of the way with our HR advice line that connects you to a dedicated consultant whenever you need them.
For further information on this service, call us today on 0845 2626 260 or email us at [email protected]

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To help you and your business become COVID-19 secure, we have compiled an essential health and safety package. Find Out More