22nd September, 2020
“I don’t want to return to the work place”
In the ever-changing employment landscape and with the latest Government advice in England being changed back to “work from home if you can”, there has been a significant U-turn in the advice to employers and their staff in respect of working from home.
England will now align with Scotland and Wales who have maintained the advice to work from home where possible.
As a result, and with records showing that 9.6 million jobs were furloughed under the Coronavirus Job Retention Scheme in the UK which is scheduled to end on 31st October, some employees will be able to return to work from their homes but inevitably there will be others that will not be able to carry out their work from home. Whilst there are calls for the Government to look at the furlough scheme in light of the new restrictions, at this stage there is no confirmation of any proposed changes or extension to the current scheme which, as it currently stands, will end on 31 October.
What happens therefore if an employee cannot work from home and refuses to return to the workplace?
Take Justin, for example, who has over two years’ service with SB Screens Ltd, has been furloughed since March and cannot work from home. Justin is refusing to return to the workplace following the end of the furlough scheme as he feels that his employer is not going far enough and should also be providing gloves for staff use and installing plastic screens. SB Screens Ltd has carried out a COVID office risk assessment in line with Government guidelines and as a result has implemented a one-way system, limited staff numbers in the office and has provided hand sanitiser throughout the office. SB Screens Ltd deems the workplace safe and is therefore considering treating his refusal as grounds for dismissal.
Firstly, Justin has the right not to be unfairly dismissed given his length of service and so if SB Screens Ltd were to dismiss him, they must do so on the basis of one of the five fair reasons. We also recommend that employers such as SB Screens Ltd consult with staff to discuss concerns and any alternative arrangements to avoid dismissal before taking any definitive action.
SB Screens Ltd also owes Justin a duty of care and must provide a safe working environment under the Health and Safety at Work etc. Act 1974. If Justin takes the view that they have not provided a safe working environment for him, he may raise a grievance, refuse to work or consider resigning and bringing a claim for constructive unfair dismissal. If Justin remains employed and refuses to work, SB Screens Ltd may be able to argue that they have complied with their obligations and provided a safe place to work and therefore Justin’s unreasonable refusal is sufficient grounds to dismiss.
Dismissal in such circumstances is not without risk however and the fairness of such a response will depend on the specific facts of the case and will include consideration of what other options are available to SB Screens Ltd as an alternative to dismissal, the risk assessment and measures put in place and how they have responded to Justin’s concerns and any genuine worries or anxiety he has about returning. In this case, it is possible that Justin’s actions could constitute unreasonable refusal to return to work leaving SB Screens Ltd with the option to consider dismissal as a last resort. However, dismissal should be a last option and only after taking legal advice and exploring all possible options available, which may in some cases include changing duties for a temporary period to allow him to work from home. In such situations every case will be fact specific and we would urge employers to take legal advice before dismissing in such circumstances.
- Getting to the root of the problem will help develop a strategy so be flexible with staff and enter into open discussion to understand concerns.
- Ensure thorough risk assessments are carried out to defend against any potential claims and that these are communicated to employees.
- Be mindful about any employees with disabilities which may trigger your duty as an employer to make additional reasonable adjustments to avoid exposure to any discrimination claims.
- If employees do have genuine concerns about returning, listen to their concerns and try and address them.
You might also be interested in...
12th September, 2022
Partner and Planning Lawyer, Mark Turner, discusses a long running case that highlights not only how seeking legal... Read More »
9th August, 2022
Mark Turner, Partner and member of the Planning, Environment, Energy and Regulatory team, discusses the current issue surrounding... Read More »