In this article, our Senior HR Advisor, Claire McGuinness, discusses what to do if an employee refuses to return to work.
With the majority of workers already returned to work following the lifting of restrictions in May, some businesses are introducing a Hybrid Working Policy making the return more flexible. Whereas those businesses that can’t offer remote working are asking more workers to return to work now and over the next few weeks.
At HPC we have taken a large scale of enquiries from clients seeking guidance on what to do when an employee refuses to return to work. Our studies show us a mix of emotions from both employees and employers. There are frustrations from both sides, as the confusion on managing employees refusing to return to work continues.
No doubt there’s positivity in that there is life after furlough for those who have been off work for months and want some normality back in their lives. Businesses are finally getting back up and running. However, the pandemic has not only altered the paradigms of businesses but also employees to the point that some are refusing to return to work. In addition, some businesses are concerned about ‘getting it right’ when employees’ do refuse.
Should employers become more flexible and offer reasonable adjustments? Is it the right thing to do to force someone back to work? What are the employee rights if they feel the workplace isn’t safe enough? What are the employers rights if they feel that it is safe enough yet employees still refuse to return?
Employers faced uncertainty due to multiple changes in guidelines on all things furlough. They now need to look at all things after furlough, what to do if an employee refuses to return to work and what to do to get it right, so we can deal with refusals to return and ensure we follow the correct steps on how to manage the return successfully.
You’ve done your planning, you’ve given reasonable notice to return, you’ve based your criteria on business needs. You’re all set to get the team back in the office, after all some employees have just had 6 months or more off work, they have to return, don’t they? What can you do if they refuse?
Usually an employee refusing to attend work would be fair grounds for disciplinary and potentially dismissal. However, the pandemic has turned employment law gospel firmly on its head. It is crucial not to take a blanket approach but to consider individual circumstances when bringing employees back to work. Remember, some employees may have children at home and need to arrange childcare. Some may have been looking after vulnerable relatives who are high risk. Some may even be high risk themselves with underlying health conditions and feeling anxious about having so much time away from work. It is important to factor in these various considerations, understand exactly why and what the reasons are so you can work around it before making a decision.
You’ve considered all of the above and the workplace has the relevant safety measures in place. Covid-19 risk assessments have been sent out to employees and they refuse to return to work as they don’t feel safe. What can you do?
It is paramount a full Covid-19 Health & Safety audit is carried out. 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. This is because employers must not jump to conclusions about an employee’s ability to return to work problem free. If a business 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. If it is 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. The employer then needs to decide how to approach that. So, what options do employers have?
Ultimately it could end in disciplinary action for unreasonable refusal or failure to follow a reasonable management instruction. This of which can be dealt with as a separate disciplinary offence also. Employees should be warned of this when they inform employers of a refusal to return to work. They should also be made aware of the necessary steps employers may need to take. However, if they are refusing on the grounds of not having childcare because of school closure due to Covid-19, then disciplinary action would be precarious.
Where an employee refuses to attend work despite the business having appropriate health and safety measures in place, this could amount to unauthorised absence. Employers need to carefully explore why the employee is refusing to come to work. They should do this by having a conversation with the individual employee as to their concerns with regard to returning.
It may be that the employee is in a particularly vulnerable group and has a health condition which places them at higher risk of contracting COVID-19 than other employees. Where this is the case employers should be making appropriate adjustments in order to mitigate these risks. Where this is not possible, employers may need to consider the possibility of keeping an employee on furlough leave. Those employees who are displaying symptoms of Covid-19 may be eligible for Statutory Sick Pay – an employee will not be able to benefit from the furlough leave payments as it is up to the employer as a business to claim this on their behalf.
What should you do if an employee still refuses to attend work? Employers could arrange with them a period of annual leave or even approved special unpaid leave, although employers do not have to agree to this. If the reason for the refusal is not to do with a health condition or caring for dependent responsibilities, and employers feel that the employee can be reasonably expected to return to work then employers can insist on the employee doing so. Any unauthorised absence can be dealt with as a disciplinary offence and depending on your individual disciplinary procedure may be classed as gross misconduct.
Ultimately, upon reflection, some employees through no choice of their own, were told to stay at home, take a reduction in pay and sit tight. A year later, the thought of returning to work for some may feel daunting, a loss in confidence, anxiousness or they may even be grieving. Employees may feel disengaged and disconnected with colleagues. Therefore, it is paramount that the transition back to work is managed individually with the right approach.
Whilst employers shouldn’t be hoodwinked and rightly so, those who just simply want more time off without good reason should be exposed to disciplinary action. But, remember the individuality and don’t take a blanket approach.
Restrictions and furlough are not forever, it will end. This is a golden opportunity for businesses to work it well. How employers treat their employees throughout the pandemic and consider their well-being is what they will be remembered for. So making sure employers investigate properly is vital. Avoiding making discriminatory decisions and avoiding breach of Health & Safety is what will make your employers feel safe and less inclined to go to battle with you on a request to return to work.
If you have employees refusing to return to work, are baffled by Covid risk assessments or just want to know what your obligations are, don’t hesitate to call HPC who can help you navigate the fog of life after furlough.
If you have any concerns or would like to discuss the topics within this article further, please get in contact with the HPC team today.
T: 0844 800 5932