Can you discipline employees for these 5 COVID-related issues?
Written by Danielle Scott on 1 September 2021
While many may have expected the return to work to be relatively frictionless, the lingering of pandemic-related complications is proving to be somewhat of a barrier.
This largely comes down to the withdrawal of restrictions by the UK government. Many workplace practices are now open to interpretation and are becoming divisive matters, causing rifts and disciplinary scenarios to arise.
Whether the issue surrounds face coverings, vaccinations, social distancing, or the very act of returning to the workplace, employers must now enforce their policies in a fair and considered manner.
And crucially, should a disciplinary scenario arise, leaders must also ensure that they are equipped with the know-how to deal with it. With this in mind, here are five COVID-related issues that may lead you to consider taking disciplinary action against an employee, and how we recommend that employers approach these scenarios with employment law in mind.
1. Employees refusing to wear face coverings
The wearing of face coverings is a divisive topic. In the eventuality that a dispute regarding face coverings arises in your workplace, the first port of call should be to thoroughly familiarise yourself with your own rules and risk assessments.
If your employees are expected to wear a face covering at work, the exact rationale for this is crucial.
Disciplining someone for not wearing a face covering will require you to firstly show that the requirement to wear one is reasonable. Naturally, if this cannot be proven to be the case, it will be difficult to take action against the employee.
Once the requirement is established as reasonable, the same scrutiny must then be applied to the employee’s refusal: is it reasonable?
A certain degree of care is required here; if the employee has a disability that prevents them from wearing a face covering, any action taken against them could be construed as discriminatory.
But if your rules, supported by a risk assessment, require the use of face coverings, and an employee unreasonably refuses to comply, disciplinary action is a reasonable avenue for employers to take.
Keep in mind that whilst a low-level warning can be given without much risk, whether you can dismiss someone for refusing to wear a face covering is a much more difficult question, and the decision to dismiss must be within the ‘range of reasonable responses’ to be considered fair.
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2. Employees refusing vaccination
Unsurprisingly, one of the most common employer queries at present is whether you can require an employee to be vaccinated.
Whilst you cannot physically force this upon them, you may be able to require vaccination as a condition of employment if you deem it to be necessary, and if the risk profile of the workplace justifies it.
This is likely to be more challenging for an office-based business as opposed to, for instance, a care home, but if categorised as a reasonable management instruction, it’s certainly possible.
The other key question, then, is whether you can discipline and dismiss an employee for refusing to be vaccinated.
Whilst the unreasonable failure to follow a reasonable management request usually has the potential to qualify as gross misconduct, the key is determining the extent to which the employer’s request is reasonable and the employee’s refusal is unreasonable. This will turn on the facts of each case.
Another factor that may play a part in the fairness of any disciplinary action or dismissal is whether the employer has a vaccination policy in place which sets out their stance to staff. If you don’t have a policy in place already, a free template can be downloaded from our Coronavirus Advice Hub.
Finally, employers must remain cognisant of the potential for discriminatory issues coming into play here. Once again, there may be legitimate health or religious reasons preventing the employee from being vaccinated.
As with all disciplinary matters, the approach to this scenario should be founded on as much evidence as possible.
3. Employees refusing to return to work
Of course, as well as those who refuse to comply with your rules on the above issues, you may also encounter employees who don’t feel these measures go far enough. For example, if you conclude, with the help of a risk assessment, that wearing a face covering isn’t necessary, some employees may refuse to attend work as they believe this is the only way to make the workplace safe.
Whether you can discipline employees in this scenario depends on a number of factors, not least the additional protection that may be afforded to employees who raise such concerns. The most relevant legislation here is section 44 of the Employment Rights Act 1996, which prevents employers from subjecting an employee to a detriment for refusing to attend work on the grounds that they had a reasonable belief that the workplace presented a serious and imminent danger.
The protection is quite specific in that:
- The employee needs to believe that they are in serious and imminent danger.
- It’s the employee’s belief that matters – the question is whether the belief is “reasonable”, so it doesn’t have to be correct nor does it matter that the employer may not agree with them.
If all these elements are met, taking any action against the employee could fall foul of the protection. If an employee was successful in bringing such a claim, damages can be awarded for loss of earnings and injury to feelings.
With this in mind, we recommend the following approach:
- Ensure that you have in place an up-to-date risk assessment, and that all recommendations are in place.
- Share with all employees the details of the risk assessment and steps taken.
- If an employee raises a concern, find out what it is and gain as much information as possible.
- If possible, answer the concerns with objective evidence, outline what steps have been taken, and discuss the potential for further measures.
- If the employee is still asserting that the workplace is not safe for them, establish why, and try to reassure them.
If the employee is adamant that they cannot continue to work, a few options can be considered. For instance, you could say that any period will be unpaid, or that they may be disciplined for unauthorised absence. However, given the risks outlined above, this should absolutely be the last resort and advice should always be taken first.
4. Employees spreading 'fake news'
While the employee differing from the organisation in terms of their stance on COVID-related matters is one thing, a potentially damaging by-product of that could be them publicly expressing those views in the workplace, potentially causing disputes with colleagues and damaging the company’s reputation in the process.
Given current trends, this is most likely to take the form of denying the risks of the virus or the efficacy and safety of the vaccines, despite substantial evidence to the contrary.
Though this is a newly-emerging matter and the consensus on it is still being established, it would be wise to start by investigating the matter and making the employee aware that whilst you respect their opinions, others do not share the same views.
However, consider also that this could fall under being a philosophical belief, so again, whether disciplinary action is appropriate will require very specific advice on the facts of the case.
5. Employees whom you suspect are lying about having COVID symptoms to stay off work
Finally, it is also conceivable that, since government guidelines require individuals to self-isolate if they show symptoms of COVID-19, employees may seek to exploit this rule and report symptoms in the knowledge that this will prevent them from attending the workplace and will most likely go unchallenged given no reasonable employer wants to risk an outbreak.
First and foremost, in an ordinary, non-COVID scenario, employers can only take disciplinary action against an individual if it can be proven that they are lying about being sick.
Failing this, it would be possible for the employee to be dismissed on grounds of their ability to do the job, providing a fair disciplinary and dismissal process has been carried out prior.
With COVID, however, the consensus has shifted somewhat, and employers must be careful about reprimanding employees for anything related to the virus. With that in mind, we suggest first investigating the situation to understand why the individual is isolating so often.
This may also double up as a deterrent, as it will make them aware that their absence is being monitored.
Once the investigation has been carried out, we strongly recommend seeking advice on how to progress with the situation, given the potential legal complexity of it.
Deal with disciplinaries the right way
Employee misconduct isn’t always black and white, and it can be difficult to know what action to take, or if you can even take any at all. This is particularly true when dealing with COVID-related disciplinary matters, which are often more complex than the run-of-the-mill misconduct issues you’re more used to managing.
Our Employment Law experts are here to help you take action confidently and compliantly. For straightforward advice on your specific situation, call 0345 226 8393 or request your free consultation using the button below.
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