How to approach employees who refuse to return to work

The key elements for employers to consider when handling a situation where an employee refuses to or is reluctant to return to work.

As businesses start to re-open after the lockdown, there are many reasons why an employee might be reluctant to return to work and it will be important for employers to handle such situations appropriately. We set out below the key elements to consider.

Vulnerable employees

There are two categories of vulnerable employees, which are as follows:

• those employees who are identified as clinically extremely vulnerable and have been advised to shield as a result of receiving an NHS letter; and
• those employees who are identified as clinically vulnerable such as those aged over 70 or who are pregnant.

If clinically extremely vulnerable employees cannot work from home, given that they have been advised to shield until at least 31 July 2020, they could take sick leave and are entitled to receive Statutory Sick Pay (“SSP”) in these circumstances. Alternatively, they could be placed on furlough leave enabling you to reclaim a grant to cover part of their wages under the Coronavirus Job Retention Scheme (“the Scheme”) (if they qualify for furlough).

If you believe an employee is considered clinically vulnerable you should ensure that you discuss any concerns with them about their return to work and, in the first instance, consider whether their role can be adjusted to enable them to work from home. You could also explore the option of referring them to occupational health, to discuss how best their return to the workplace can be facilitated.

For clinically vulnerable employees who cannot work from home, they can be required to return to work. However, it is important that you carry out a risk assessment and implement steps to reduce the risk faced by these employees.

For example, it will be important that such employees are able to maintain social distancing and as such should be offered the option of the safest available on-site roles, enabling them to stay two metres apart from others. If no such role is available, you should consider whether this is an acceptable level of risk for that employee. This individual risk assessment may decide that remaining on furlough leave (if they qualify for furlough) or taking holiday or unpaid leave would be more appropriate than returning to work. It is worth noting that clinically vulnerable employees are not entitled to receive SSP.

Failure to take these additional precautions for vulnerable employees could result in a claim against the employer for negligence, personal injury or a breach of the implied duty of trust and confidence. Furthermore, such employees may also qualify as disabled under the Equality Act 2010. If this is the case, then employers should be mindful of their duty to make reasonable adjustments, which arguably could include allowing the employee to stay at home (although not with full pay unless they are able to work from home). Such employees would also have the right not to be indirectly discriminated against by any policies the employer implements.

The employee lives with a vulnerable person

Government guidance suggests that employers should pay particular attention to employees who live with someone who is clinically extremely vulnerable and shielding. You should do what you can to support the employee by allowing the employee to follow the social distancing guidance. We would expect employers to be both sensitive and as flexible as possible in their approach towards such employees.

One option where an employee has previously been furloughed under the Scheme and they cannot work from home, would be for the employee to remain on furlough for longer or until the vulnerable member of the household is no longer advised to shield.

Despite not owing a direct duty of care to individuals with whom your employees live, this individual may be considered disabled for the purposes of the Equality Act 2010 giving the employee protection from direct discrimination or harassment by association with a disabled person. You should therefore be careful that such employees do not suffer associative discrimination.

The employee has no or limited available childcare

Many working parents have benefited from the ability to work from home during this time, and therefore if they are able to continue to do so, you would be well advised to continue to support this.

Where this is not possible, then one of the ways to deal with genuine childcare issues where the employee is already on furlough leave is to keep the employee on furlough for as long as possible.

Another alternative, provided the employee has been on furlough for at least three weeks prior to 30 June 2020, is to consider placing the employee onto a flexible furlough arrangement to allow the employee to undertake some work around the limited childcare they may have available whilst allowing you to claim the grant for the hours they are not working.

If the employee does not qualify for furlough, you could suggest that they take unpaid parental leave. Employees are eligible for a maximum of four weeks’ parental leave per child under 18. This statutory entitlement is currently only available where the employee has one years’ service, but it may be beneficial for you to adopt a flexible approach to this.

Pregnant employees

Pregnant women fall into the category of those considered to be clinically vulnerable and as such are advised to practice social distancing, unless they have a significant heart disease in which case, they are considered clinically extremely vulnerable and should be shielding (see above).

Requiring a pregnant employee to return to work could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence unless appropriate protections are put in place for the employee in the workplace.

In addition, where a pregnant employee subsequently contracts COVID-19 from being in the workplace with insufficient protection they could potentially have a claim for personal injury against the employer.

Employers have additional duties under the Management of Health and Safety at Work Regulations 1999 to protect the health and safety of new and expectant mothers in the workplace which mean that you are required:

• to assess the workplace risks posed to new or expectant mothers or their babies;
• to alter the employees working conditions or hours of work to avoid any significant risk;
• where it is not reasonable to alter working conditions or hours or avoid the risk, to offer suitable alternative work on terms no less favourable; and
• where suitable alternative work is unavailable to suspend the employee on full pay.

Where you have taken all reasonable steps to protect the employee in the workplace, it may be enough to meet your obligations and entitle you to insist on the employee returning to work rather than having to suspend the employee on full pay. However, where an employee is exposed to a known risk, especially if they are vulnerable, this could result in civil claims for stress and/or psychiatric illness. Such claims would be difficult to defend even if reasonable steps have been taken. Each case will therefore need to be carefully considered on its own facts.

The employee believes they are in serious or imminent danger

An employee can refuse to return to work on the basis they are in serious and imminent danger and this belief, of serious and imminent danger, is held reasonably. If the employee is subsequently dismissed for their failure to attend work on this basis, the dismissal could be automatically unfair, and the employee will not need a minimum of two years’ service to bring a claim in the Employment Tribunal.

Although rare, addressing such issues seriously and considering the individual employee’s circumstances will be important. For example, for an employee considered to be clinically extremely vulnerable, the perception of imminent danger that by returning to work they are potentially exposed to COVID-19, is likely to be seen to be a reasonably held belief.

Refusal to return without reason

Where an employee refuses to return to work with no valid reason, the best approach to is to understand the employee’s reluctance and to be sympathetic to any concerns raised and try to resolve the employee’s concerns to protect the health and safety of the individual (for example, by offering them flexible working or allowing them to take holiday or unpaid leave). Employers should ensure that they document any decision-making process.

If the employee can work from home, this may well resolve the issue. If the employee cannot work from home, you will need to consider:

• the current public health advice;
• the specific reason that the employee is concerned about attending work; and
• whether it would be discriminatory to:
  • refuse home working;
  • take disciplinary action; or
  • withhold pay in light of the employee’s refusal.

Try and be creative in identifying solutions and be mindful that severe anxiety could amount to a disability under the Equality Act 2010.

Taking disciplinary action for a refusal to return to work presents risks where employees have more than two years’ service and therefore the ability to claim for unfair dismissal. Employers will need both a fair reason to dismiss and to follow a fair procedure prior to dismissal. It is unlikely that a dismissal for gross misconduct due to unauthorised absence will be considered to be fair if the employee has legitimate concerns about returning to work and/or you have failed to take steps to understand and remedy those concerns.

Furthermore, where specific concerns have been raised, you should also consider whether they satisfy the definition of a qualifying disclosure for the purposes of a whistleblowing claim. If so, then the employee would be protected against suffering a detriment and/or a dismissal related to the disclosure. Employees do not need a minimum of two years’ service to bring a whistleblowing claim.