The coronavirus lockdown has created an abundance of unforeseen and unprecedented workplace conundrums for UK employers. And there is another tough task looming: asking people to come back into the workplace, in light of prime minister Boris Johnson’s amended guidance, issued 11 May, that those who cannot work from home should return to work.
While usually an employee refusing to attend work would be fair grounds for disciplinary and potentially dismissal, the pandemic has turned employment law gospel firmly on its head.
Indeed, the decision to open shop can be a controversial one in the current climate. Engineering firm Dyson faced a staff revolt when it apparently went against government guidance and sent an email asking all staff – including those who could work from home – to return to its sites. If the decision had not been overturned the following day, it is entirely possible the company could have faced employment tribunals further down the line.
Kate Palmer, associate director of advisory at Peninsula, says: “I wish I could say it was a simple answer, but it's so specific to the individual employee's circumstance that you can't determine what’s reasonable for either the employer or employee until you understand the specific nuances of their situation.”
So what action can employers take if employees refuse to return to work, without falling foul of the law?
Look at individual circumstances
According to Lucy McLynn, head of employment at Bates Wells, an understanding of why the employee doesn’t want to return needs to be obtained “first and foremost”. “Employers are just going to have to be systematic and really probe into employees' individual circumstances and understand exactly why and what the reasons are so they can work around it,” says McLynn.
She adds that “sensible employers” will already have a sense of what their workforce feels about returning by “gauging opinions through surveys and factoring that into their planning for reopening the workplace”.
Trevor Bettany, partner at Charles Russell Speechlys, adds: “The starting point is the extent to which the circumstances or guidance shape and/or influence the underlying duty of trust and confidence. It all boils down to reasonableness and [as we’ve seen from the Cummings affair] people have differing notions as to what is deemed reasonable and appropriate behaviour.”
Don’t take a blanket approach
As such to take a one-size-fits-all approach when dealing with employees reluctant or refusing to return to work could be “really misplaced”, says Palmer. She highlights that it’s not easy for some people to return to work, and that employers must factor in various considerations before making a decision.
Those considerations could be living with someone who is shielding, a single parent who cannot secure childcare or underlying health conditions.
“An employee cannot be at a detriment for refusing to return to the workplace where they have serious health and safety concerns. From a legal perspective if an employer decided to discipline or reprimand, they would be on tricky ground,” adds Palmer.
Proceed cautiously with disciplinary or dismissal action
While this action may have been the default position where staff were refusing to attend work in the past, Bettany highlights that a balancing act of employee and employer rights could make for precarious legal ground.
“An employer can impose rules or make requests, but the flashpoint comes if the employee refuses to comply and calls the employer’s bluff,” he says.
“So what we’ve got is a relaxation of the employer’s contractual right to insist the employee attend the workplace,” he continues. “In these circumstances it would be unreasonable to force employees and it would infringe other rights of the employee such as health and safety. You have all these different rights and it's a case of trying to balance them and work out which takes priority in any circumstances.”
McLynn adds: “Don't rush into disciplinary action or dismissal. It’s going to be very challenging to take action, especially if the employee has personal circumstances that prevent their return.”
Make a well-informed decision
Palmer adds, however, that just as employers must not jump to conclusions about an employee’s ability to return to work problem free, if an organisation has followed all government guidelines and ensured the risk is minimised for employees, but they still refuse to return, then the business also needs to be prepared to conclude a staff member doesn’t have reasonable grounds. The employer should then think very carefully about how to approach disciplinary proceedings, she says.
“If it's just because they don't want to return then it is unreasonable on the employee’s part and it would be unreasonable grounds for refusal, and the employer needs to decide how to approach that,” says Palmer.
“Ultimately it could end in disciplinary action for unreasonable refusal or failure to follow a reasonable management instruction. However, if they are refusing on the grounds of not having childcare because of schools remaining closed, then disciplinary action would be precarious.”
Remember whistleblowing protections
Employees who raise concerns (in the public interest) about health and safety risk in the workplace could also exercise whistleblowing rights. McLynn says this is going to be a “whole other route of protection for employees”.
“If they put their concerns for their safety in writing then that could be considered a disclosure against health and safety concerns,” she says.
Palmer adds that “hopefully, most employers can avoid that”. She says: “If the employer has instigated a proper risk assessment and implemented measures based on their risk assessment control measures, that protective disclosure would probably fall apart if they had no grounds, but it doesn’t stop them doing it.
“Another angle to that is you can be reported to the Health and Safety Executive,” she adds. “They’ve just received £14m of funding, presumably on the expectation that there are going to be more reports of these types of situations. So there are routes via which employees can raise concerns. But likewise if they are malicious or unfounded then the employer shouldn’t be at risk.”