For many businesses, the last 18 months have been an experiment in seat-of-the-pants flexible working arrangements and as a result, remote working has become the norm for many employees.
As part of the lockdown-lifting changes that came into effect in England on 19 July, the Government’s work from home message has now been updated and employers in England are encouraged to ‘start planning a safe return to the workplace. This decision however, can be a controversial one, a recent example being when engineering firm Dyson faced a revolt from their employees when it seemed to go against government guidance and sent an email asking all staff – including those who could work from home, to return to its sites. Had the decision not been reversed the following day, the company may have found themselves facing their disgruntled employees in an employment tribunal further down the line.
Many businesses have already begun thinking about bringing employees back to work in some capacity, but as has been the case with every change around COVID rules, employers will need to be prepared to deal with questions and concerns from their workforce. With the threat of Covid-19 still very much evident, employees can be anxious about the safety of the workplace and evidence is already beginning to emerge that some are reluctant to return. Simply put, where employees have had a trial run of more than 18 months working remotely, some may simply wish to carry on with their current remote working arrangement.
So, what can employers do to effectively and tactfully manage the various scenarios in which employees refuse to return to work.
Employees with concerns of Health and Safety
Health and Safety related concerns are among the most common reasons for refusal to return to the workplace and this could be demonstrated in a number of ways. For instance, while a risk assessment may help employers to reach the conclusion that wearing a mask in the office is not necessary, this may not be the view of certain employees. This is a relatively likely scenario and so it is crucial employers familiarise themselves with the rights of the business, and, those of their employees.
Section 44 of the Employment Rights Act is a highly relevant piece of legislation, as it in effect, protects employees against penalty or detriment in the event of them acting on the belief that the workplace presented a serious and imminent danger to them.
However, it should be noted that the grounds for the protection are 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 action against the employee, whether by dismissal, or by not paying them, could fall under the protection. Furthermore, if an employee was successful in bringing such a claim against their employer, damages could be awarded for loss of earnings and injury to feelings.
To minimise the risk of such a situation arising, employers should be looking to adhere to a number of key considerations:
Ensure that up-to-date risk assessments are in place, with particular attention being paid to employees with medical conditions or other protected characteristics.
Share with all employees the details of the risk assessment, what steps the business has taken and what steps are still to be taken in the future.
Where an employee raises a concern, approach this sensitively, gaining as much information on the concern as possible and avoid reproaching the employee for coming forward.
Answer employee concerns with objective evidence to support employer assertions that the workplace is safe by implementing further measures where they are found to be necessary.
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 the employee that the dangers they have highlighted are not actually present.
If the employee’s position on returning to work does not change despite your reassurances and positive actions around Health and Safety, then employers may need to explore the options open to them. However, stating that any period will be unpaid, or that the employee may be disciplined for unauthorised absence should be a last resort and it is advised that professional advice is always sought before resorting to any action against an employee, in order to avoid or minimise any potential legal breaches.
What if an employee is clinically vulnerable?
There’s a clear difference between an employee being unwilling to return to the office and them being unable to return and employers need to be able to recognise this distinction and factor clinically extremely vulnerable (CEV) employees into their plans to move employees back to the workplace, from remote or home working.
Although there is little guidance currently available on how CEV employees should be treated when considering the move back to the workplace, from a legal standpoint, CEV employees are likely to be classed as disabled and if this is the case, employers will be obligated to make ‘reasonable adjustments’ to the workplace, to accommodate for the health condition of their employee.
The definition of ‘reasonable’ will be relative to the employee’s condition and the nature of the workplace itself, however, an obvious example would be to allow CEV employees to continue working from home, even when others return to the workplace. If, for example, an individual has exhibited competence and efficiency whilst working remotely throughout the pandemic, this would be good grounds on which to categorise the adjustment as ‘reasonable’ and therefore allow them to continue doing so.
What if an employee wants to remain working remotely?
Employers are likely to experience resistance from some employees, to their plans to return to the workspace, particularly as many employees are now content and comfortable working remotely.
Government guidelines say 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 and with that in mind, employers can now request their employees return to their normal workplace – if the employment contract states they should be based from the office/workplace. However, it is worth carefully considering whether that is entirely necessary. The pandemic has highlighted that a vast number of roles can be satisfactorily fulfilled with great efficiency in a remote environment, opening up a number of opportunities for businesses. Finding a mutually satisfactory middle ground can be the key, with many businesses now moving to a more flexible and hybrid working model.
There is already current legislation around how to deal with flexible working requests, which requires a request to be made in writing, and for the employer to then offer a ‘reasonable’ response and to notify the employee of its decision within three months of the request, or longer period if agreed with the employee. Trial periods of flexible working can also be offered further to a flexible working request, which would allow the employer a practical trial of the arrangement, with the final decision being made at the end of the trial.
It’s not always necessary for employers to agree to a flexible working request and refusing one is possible, providing one of the statutory 8 reasons apply.
8 Reasons for refusing a flexible working request:
The burden of additional costs
Quality or standards will suffer
An inability to reorganise work among existing staff
An inability to recruit additional staff
Performance will suffer
A struggle to meet customer demand
Insufficient work for the periods the employee proposes to work
Planned structural changes to the business.
In law, it could prove difficult for an employee to challenge any one of these reasons should the employer choose to defer to them. However, there remain employment risks by way of an indirect discrimination claim, e.g. where a female employee is refused the right to a shorter working day for dropping off her children at school, as this could be construed as discriminatory, because the situation relates disproportionately to female employees. In a case such as this, the employer would be expected to objectively justify their refusal.
While usually an employee refusing to attend work would be fair grounds for disciplinary and potentially dismissal, the pandemic has meant employers must consider many different factors and individual circumstance, so they don’t fall foul of the law when determining what action to take if employees refuse to return to work.
Look at individual circumstances
Don’t jump to conclusions about an employee’s ability to return to work
Manage flexible working requests
Proceed cautiously with disciplinary or dismissal action
Be pragmatic when resolving a return to work where stalemate situations occur
Remember Health and Safety (and whistleblowing) protections
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