Help, my employee won’t return to work

Written by James Tamm on 2 August 2021

Remote working has become the norm for many organisations. However, as part of the lockdown-lifting changes that came into effect in England on 19 July, the government’s work from home message has been revoked and employers in England can now “start planning a safe return to the workplace”.

Given the change in message, you may have begun thinking about bringing employees back to work in some capacity, if you haven’t already. However, as has been the case with every change to COVID rules, employers should expect to deal with questions and concerns. With the threat of the virus still very much present, employees may be anxious about the safety of the workplace, and there’s a high likelihood that some will be reluctant to return.

What’s more, after an 18-month trial period, others may simply prefer to stick with their current remote working arrangement; in fact, a YouGov poll found that 80% of workers want some ability to carry on working from home, and four out of 10 would consider quitting if forced to return to the office full time.

With that in mind, here’s our quick guide to effectively and diplomatically managing a variety of scenarios in which employees refuse to return to work.

Employees with safety concerns

Naturally, safety-related hesitation is going to be among the most common reasons for refusal to return to the office.

This could manifest in a number of ways. For instance, while a risk assessment may help you to reach the conclusion that wearing a mask in the office is not necessary, this may be at odds with the stance of certain employees.

With this being a relatively likely scenario, it’s crucial that employers familiarise themselves with the rights of themselves and the employee.

This is where Section 44 of the Employment Rights Act is a pivotal piece of legislation. In effect, it protects the employee 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 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. Furthermore, if an employee was successful in bringing such a claim, damages can be awarded for loss of earnings and injury to feelings.

In order to minimise the risk of such a scenario arising, employers should ensure that they adhere to a series of key parameters:

  • Ensure that an up-to-date risk assessment is in place, with particular attention being paid to employees with medical conditions or other risk characteristics.
  • Share with all employees the details of the risk assessment, what steps you have taken, and what steps are still to be taken in the future.
  • If an employee raises a concern, obtain as much information on it as possible. Approach this sensitively, and avoid reprimanding the employee for coming forward.
  • Try to answer the concerns with objective evidence to support your assertion that the workplace is safe for the employee. If any further measures can be taken, implement them.
  • If the employee is still asserting that the workplace isn’t safe for them, establish why, despite sharing information with them, they still hold that view. Try to reassure them that the dangers they have highlighted are not actually present.
  • If the employee’s stance is firm, consider your options – you could, for instance, say that any period will be unpaid, or that they may be disciplined for unauthorised absence. This should be a last resort and advice should always be taken first to avoid any potential legal breaches.

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Clinically extremely vulnerable employees

While being sceptical about returning to the office is one thing, being physically unable to is another entirely, and it’s vital that employers recognise this distinction and factor clinically extremely vulnerable (CEV) employees into their planning.

What’s more, CEV employees are a group that have largely been abandoned during the gradual lifting of COVID restrictions, and as a result, there is very little helpful guidance on how they should be treated post ’freedom day’.

From a legal standpoint, CEV employees are very likely to be classed as disabled. As a result, the employer is obligated to make ‘reasonable adjustments’ to the workplace to accommodate for their condition.

Though the definition of ‘reasonable’ is relative to the employee’s condition and the nature of the workplace itself, an obvious example in the current climate would be to allow them to continue working from home, even while others are returning to the office.

If the individual has displayed competence and efficiency whilst working remotely throughout the pandemic, this is good grounds on which to categorise the adjustment as ‘reasonable’ and thus allow them to continue doing so.

Those who wish to remain remote

Finally, with many employees now happy and comfortable working remotely, and with a strong consensus established for organisations remaining at least partly remote post-pandemic, businesses looking to move back to an office-based set-up may encounter considerable push-back.

Again, as far as government guidelines go, it is now no longer an official requirement to ‘work from home where you can’ in England, with a gradual return to offices being recommended.

With that in mind, employers can now require their staff to return to their normal workplace if their contracts stipulate that they should be office-based.

However, employers must carefully consider whether that is entirely necessary. The pandemic has shown that a vast number of roles can be fulfilled with great efficiency in a remote environment, and that opens up a world of opportunity for businesses.

That being said, there is of course a middle-ground to be found, with vast numbers of businesses now moving towards flexible and hybrid models.

If this is a procedure that the employer hasn’t attempted to tackle yet, there is legislation setting out how to deal with flexible working requests. It requires a request to be made in writing, and for the employer to then offer a ‘reasonable’ response.

It is also possible to agree to a trial period following a flexible working request, and if the employer is unsure as to whether it will work, this may be a practical method of testing the water first. A final decision can be postponed until the end of the trial.

However, it is relatively straightforward to reject a flexible working request, as long as one of eight reasons apply:

  • The burden of additional costs
  • An inability to redistribute work among staff
  • An inability to recruit additional staff
  • A detrimental impact on the quality of the service
  • A detrimental impact on performance
  • A detrimental effect on ability to meet customer demand
  • Insufficient work for the periods the employee proposes to work
  • Planned structural changes to the business.

Where the law is concerned, it would be difficult for an employee to challenge any one of these reasons should the employer choose to defer to them.

However, the big risk in these situations is an indirect discrimination claim. For instance, if a female employee is refused the right to a shorter working day so that she can pick her children up from school, this could be construed as discriminatory because the situation is disproportionately likely to impact female employees.

As a result, that decision could be indirectly discriminatory on the grounds of sex, and the employer would be expected to objectively justify their refusal.

If in doubt, seek expert advice

Dealing with employees who refuse to return to work can be challenging, and a wrong move can expose your business to legal risks. For From managing flexible working requests to facilitating a return to work where staff express safety concerns, secure the best possible outcome and resolve stalemate situations with pragmatic, solutions-focused advice from our Employment Law experts.

For support, call 0345 226 8393 or request your free consultation using the button below.

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