With the recent lifting of lockdown and public health restrictions, employers can start to plan a return to workplaces for furloughed employees or those who have been working from home. Still, some employees may have ongoing concerns about the spread of coronavirus within the workplace, refusing to return where they feel unsafe, especially if they are clinically vulnerable or are not yet fully vaccinated, or live with someone falling into one of these categories.
The following guidance looks at the legal obligations on employers to ensure the health, safety and welfare of their staff. We also examine the rights of employees when considering the question: can employees refuse to return to work if they feel unsafe because of COVID?
Is a return to the workplace mandatory?
Having lifted the social distancing rules and the legal requirement to wear face masks on 19 July 2021, it is now no longer deemed necessary for the UK government to instruct people to work from home. As such, employers can start to plan a return to workplaces.
However, with continued risk of transmission, the move into step 4 of the government roadmap is not a green light for workplaces to return to normal, where cautious guidance will stay in place while COVID-19 cases remain prevalent. As such, although the government is no longer instructing people to work from home, a “gradual” return to the workplace is being recommended, with the updated guidance on working safely introducing few changes to the measures already being used in work settings.
Given that the government has put the brakes on a large-scale return to the workplace during what is described as the third wave of the pandemic, employers should not interpret the lifting of the working from home instruction as permission to force an immediate return to work.
Once a wider return to workplaces is encouraged by the UK government, in theory employers may be able to insist that employees come into their normal place of work, and treat it as a misconduct matter if they refuse to do so. However, with coronavirus case numbers rising, these are far from normal times and the legal position remains complicated.
Employer legal obligations
Employers have a legal duty to manage any health and safety risks to those affected by their business, including their staff. In discharging this duty, employers should therefore carry out a comprehensive risk assessment that includes the risk from COVID-19, and take reasonable steps to mitigate the risks identified.
The latest ‘working safely ‘ guidance provides advice on sensible precautions employers can take to manage risk, and support their staff and customers, and sets out a range of mitigations employers should consider, including:
- identifying poorly ventilated places and taking steps to improve air flow
- cleaning surfaces that people touch regularly, and asking staff and customers to use hand sanitiser and to clean their hands frequently
- ensuring that any staff and customers who are unwell or self-isolating do not attend
- enabling customers to check in at the venue by displaying an NHS QR code poster
- communicating to all staff and customers the measures that have been put in place.
The main change in the current guidance is that social distancing restrictions will no longer apply, meaning employers will not need to impose measures to keep people apart, although they should still reduce the number of people their staff come into contact with.
By following the principles set out in the guidance, employers will not only help to reduce the spread of the virus at work, but also help to allay any health and safety concerns from their workforce. This covers various different types of work including construction, offices, factories, shops, hairdressers, beauticians, restaurants, pubs, take-aways and hotels.
You should use the guidance to assess the risks within your workplace — this will depend on both the nature and size of your business, and how it is organised, operated, managed and regulated — and decide which measures are appropriate to adopt. It is anticipated that businesses will need to take fewer precautions to manage the risk of COVID-19 in the long-term once it’s safe to do so, where the government will continue to keep its ‘working safely’ guidance under review, but these steps should still be followed in the meantime.
Can employees refuse to return to work?
The Employment Rights Act 1996 entitles employees to stay away from the workplace where they reasonably believe that they will be at risk of serious and imminent danger by returning to work. This is because sections 100(1)(d) and 44(1A)(a) afford the employee specific protection if they are dismissed, disciplined or otherwise subjected to a detriment as a result of having reasonable health and safety concerns and raising these with their employer.
This means that if an employee refuses to return to work, where they reasonably believe that to do so would pose a serious and imminent risk to their health and safety, it would be unfair to dismiss them, or unlawful to discipline them, because of this. Under sections 100(1)(e) and 44(1A)(b) this could also extend to circumstances in which an employee refuses to return to work so as to protect others from danger, such as someone they live with. The employee would not be required to show that a serious and imminent danger existed, but simply that they reasonably believed that going into work would put them or others in potential danger.
In practice, employees most likely to hold a reasonable belief that returning to work would be dangerous will be those who are clinically vulnerable or have not yet been fully vaccinated. However, an employee may be suffering from a mental impairment, such as anxiety or stress, that could easily give rise to legitimate concerns over their exposure to the virus at work. It is important to bear in mind that cases involving anyone suffering from either a long-term physical or mental impairment, or for pregnant employees, any dismissal or disciplinary action against that employee could also amount to unlawful discrimination.
It is also important to remember that any failure to carry out a risk assessment or comply with the latest government guidance is likely to increase the number of employees refusing to return to work because of health and safety concerns. It is also more likely, in these circumstances, that an employee would be able to demonstrate that they held a reasonable belief that they would be at risk of serious and imminent danger by returning to work.
Can disciplinary action be taken against an employee refusing to return?
Unless an employee has a valid reason not to return to work, for example, where they feel unsafe to do so, they remain contractually bound to resume their previous role within their normal place of work, albeit on reasonable notice. In theory, this means an employer may be justified in following its disciplinary procedure and taking action against an employee for any failure to follow a reasonable instruction or for their unauthorised absence from work, treating this as a misconduct matter. In practice, however, extreme caution must be exercised before disciplining or dismissing a member of staff for any refusal to return.
Prior to bringing any disciplinary proceedings, you should investigate the reasons for someone’s reluctance to come back to work. There may be a legitimate explanation that is not immediately apparent. Employers should also ensure that individual risk assessments are carried out, with consideration of any reasonable adjustments that can be made, before insisting on any return to the workplace for employees suffering from mental health issues.
In circumstances where an employee is clearly concerned about their health and safety, or that of a loved one, any decision to discipline or dismiss them because of this could result in a potential claim for unlawful detriment, unfair dismissal or even unlawful discrimination. By putting undue pressure on an employee to return to work when they are fearful to do so could also result in them feeling forced to resign, leading to claims for constructive dismissal.
In most cases of unfair dismissal, including constructive dismissal, to be eligible to claim an employee will need to have a continuous period of employment of 2 years. However, provided the relevant health and safety provisions of the 1996 Act are triggered — where an employee holds a reasonable belief that they or their loved ones will be at risk of serious and imminent danger by returning to the workplace — there is no qualifying service requirement.
How to deal with health and safety concerns
The recent lifting of restrictions does not mean that the risks from coronavirus have disappeared. Instead, this marks a new phase in the government’s response to the pandemic during which we all need to manage the risks to ourselves and others as we learn to live with the virus. Some employees may be looking to limit the close contact they have with anyone they do not usually live with, so as to reduce the risk of catching or spreading the virus. As such, employers should respect and be considerate of those keen to take a cautious approach.
As an employer, you also have a duty of care to ensure the health, safety and welfare of your staff, including their emotional wellbeing. Many employees will have legitimate concerns about returning to the workplace and their commute to work, so it’s crucial that you take all reasonable steps, not only to protect your staff but to allay their concerns.
Employers now planning a return to the workplace should first consult with employees at an early stage, taking into account individual circumstances and issues. By trying to agree new working arrangements, rather than imposing ultimatums on staff, this is more likely to assist with a smooth transition and help to maintain positive employee relations. A softer approach is also more likely to avoid any potential damage to staff morale and your employer brand.
What options do employers have if employees are refusing to return?
The current government advice on any return to work is that employers should be taking socially responsible decisions, doing what they can to facilitate flexible working arrangements. This could include working remotely or hybrid working. Where the employee is required to spend any time whatsoever in their normal place of work, consideration should be given to what safe methods of travel are available and if any adjustments might assist, for example, staggered shifts to avoid travelling at peak times or the provision of additional parking spaces so that employees can avoid using public transport where at all possible.
In respect of employees classed as ‘clinically extremely vulnerable’ (CEV), the latest government guidance no longer advises that these employees should work from home. Still, any return to the workplace for CEV’s must be managed with the utmost care. Employers should give extra consideration to any employees at higher risk of becoming seriously ill if they were to catch coronavirus, discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians.
As part of any approach to vulnerable staff, employers should take account of the extra precautions recommended in the guidance on protecting people defined on medical grounds as extremely vulnerable.
Need assistance?
Our employment law specialists are on hand to provide advice to employers on return to work strategies and workforce issues relating to COVID health & safety. Working closely with our HR consultants, we offer holistic guidance to promote positive employee relations while minimising complaints when leading your business through the return to work transition. To reduce legal risk while protecting your business’ commercial interests, speak to our experts today.
Employees Refusing to Return to Work FAQs
Can an employee be sacked for refusing to come back into work?
Following the lifting of lockdown restrictions, if an employee refuses to come back into work this could be grounds for dismissal, unless they reasonably believe that this would pose a serious and imminent risk to their health and safety.
Can employers require employees to come back into work after lockdown?
Depending on the employee's contractual working arrangements, they may be obliged to return to work after lockdown, although any dismissal or disciplinary action brought against an employee who has raised reasonable concerns of health and safety issues could amount to unfair dismissal, unlawful detriment or even unlawful discrimination.
Last updated: 25 July 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
