August 28, 2020

Can Employees Refuse to Return to the Workplace?

As lockdown restrictions ease, many employers are now considering returning their employees to the workplace.

Given the risk of COVID-19 is still present, can employees refuse to return to the workplace? And what are your rights as an employer?

Blanket Refusal to Attend the Workplace

Employees are required to carry out their contractually mandated duties and this may require attending the workplace. The starting point, as always, will be the contract of employment. This sets out the employee’s place and location of work.

A direction to an employee to attend the workplace will normally be a reasonable management instruction. And a refusal can be treated as a disciplinary matter.

During the Current Pandemic

The current pandemic has been aptly described as the worst public health crisis in a generation. Therefore, deciding how to address an employee’s refusal to attend the workplace requires a more nuanced approach.

Where an employer disciplines or dismisses an employee for not attending the workplace because in circumstances of danger which the employee reasonably believed to be serious and imminent, he or she refused to attend the workplace, then the employer will be facing an award for compensation. This can be for unfair dismissal, or for injury to feelings if any disciplinary action by the employer resulted in a sanction short of dismissal, for example, a written disciplinary warning.

Under health and safety legislation, an employee can also bring a claim for automatic unfair constructive dismissal if he or she resigns as a result of the employer punishing the employee for not attending the workplace.

An employee does not need two years’ service to qualify to bring any of the above claims.

Such claims can also arise where an employee takes “appropriate steps” to protect themselves or another (e.g. a family member or fellow colleague) from the risk of serious and imminent danger by refusing to attend the workplace.

What Can Employers Do?

What should an employer do if an employee will not attend the workplace for pandemic related reasons?

An unwillingness to attend work could warrant disciplinary action but caution should be exercised as an employee could, but not necessarily will, successfully bring the claims described above.

Some of the key questions that will need to be considered by an employer is:

  • Whether the employee is worried about COVID-19 in general or is there something specific within the workplace disturbing the employee?
  • What level of risk assessment has been carried out by the employer and to what extent is that risk assessment COVID-19 centric?
  • Does the risk assessment factor in any underlying conditions (e.g. pregnancy or BAME employees of a certain age) that may require reasonable adjustments?
  • Will the employee encounter dangers during the commute to work and if so, to what extent can they be eliminated or mitigated?

Why Follow These Steps?

An employer will want to argue that based upon the information at the employee’s disposal, his belief that he was at risk of serious and imminent danger was not reasonable. This will require the employer to consult with the employee to find out exactly what is preventing the employee from attending the workplace.

An employer should share any risk assessment with the employee and consider the fears of the employee and the counter measures put in place by the employer. For example:

  • Start times could be adjusted to avoid rush hour commuting
  • Measures could be taken involving socially distanced work areas
  • There could be a greater supply of hand sanitisers in the workplace
  • Other industry sector specific measures recommended by the government could be implemented

The above can be noted in the risk assessment and could negate the “reasonableness” of an employee’s concern of contracting COVID-19.

Such a risk assessment should always be shared with the employee. And as always, each case is very fact specific and legal advice should be taken before assessing an employer’s risk in taking disciplinary action.

Note that the regional variance in the well-publicised “R” number is a factor that may play out differently in Blackburn as it would in the Outer Hebrides. This may affect the balancing exercise between an employee’s fear and the overall efficacy of the employer’s counter measures.

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Sunit Joshi

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