May 19

Is an employee’s refusal to return to work from furlough leave grounds for disciplinary action?

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Employees are being urged to remain working from home for as long as possible. However, where jobs cannot be performed from home employees are allowed to attend work and an employer whose business is reopening may need them to return to the workplace.

How to deal with employees’ concerns:

• Some employees may be unable to come to work if they are ‘shielding’. The advice to employers is to leave them on furlough leave.

• Some employees may not be shielding but are otherwise considered vulnerable (or living with someone considered vulnerable) and are also advised to remain at home. Again employers should leave them on furlough.

• Some employees may be concerned about how they can safely get to work and about their safety in the workplace. As an employer you have a duty of care to protect the health and safety of all staff and so you should listen to concerns and take the necessary steps to protect everyone:

o Carry out a risk assessment and discuss with the employee the measures you have already put in place:

 enforce the 2-metre social distancing rule, put tape on the floor in well-used areas, for instance around a reception area and space out desks accordingly
 ensure they have relevant protective clothing
 make sure there are hand washing facilities and that employees are encouraged to regularly wash their hands
 stagger shifts to limit contact with others
 stagger lunch breaks so people are not congregating in the lunch area
 ensure people are not making cups of tea for their team like they would have done previously
 encourage people to challenge behaviour that doesn’t comply with social distancing
 regularly remind staff of their obligations as things can quickly become relaxed.

o Ask if they think anything further should be provided to make them feel comfortable about coming to work and make sure they are aware of the following:

 The employee assistance programme which is open for them to contact at any time
 The regular communication that has been structured between line manager and employee to ensure concerns are addressed in the moment.

Potential claims if employees are forced to return to work:

It is important to note that genuine concerns should be accommodated where possible. Forcing employees to come to work against their will, in these unprecedented circumstances, can lead to claims on the following basis:

• Employees are protected from detriment or dismissal where they refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent.
• Employees who refuse to attend work raising safety concerns relating to coronavirus might qualify for protection from detriment and dismissal as a whistleblower.

Of course, the more that employers do to ensure they are doing all that they can to implement risk assessments, maintain proper social distancing and provide PPE where necessary, the less chance the employee can reasonably refuse to come to work and have a successful potential claim.

Using holiday or unpaid leave:

If the employee still does not want to return to work, you could ask them to take holiday or a period of unpaid leave – this does need to be agreed by both parties and looked at on a case by case position.

The last resort:

If there is refusal to take holiday or unpaid leave and the employee, despite clear communication as to very thorough and careful healthy and safety precautions, is still refusing to return to work then disciplinary action may be considered although only in extreme cases and caution will be required!

If employees are happy to return from furlough:

Returning staff from furlough is inevitably going cause more issues for an employer than the initial furloughing of staff in late March. Therefore, an employer will need to:

• Be clear about what staffing needs it requires, both initially and longer term.
• Be prepared to discuss and justify such proposals in advance of contacting affected employees.
• Get in touch with your staff and confirm when you want them to come back to work, giving them reasonable notice.
• Document and discuss any difficulties raised by individual employees, such as those identified above and consider and find workable solutions.
• Confirm verbally and in writing to those who have been selected and have agreed to return.

Important to remember, the government guidance is that everyone should work from home and only go into the workplace if their job absolutely cannot be done from home.

For any help at all please contact nicola.goodridge@goodhr.co.uk or on +44(0)7917878384