May 19

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

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 or on +44(0)7917878384

May 5

Getting employees back to work post lockdown….

How you manage a return to work will depend on the degree of closure during the pandemic, but there will be some common themes:

There will be a requirement for some form of social distancing for some time to come. You will need to review your workplace and consider the following:

1. can staff maintain a 2m physical distance between each other?
2. how will you manage meetings, interviews and other interactions?
3. how will you manage communal areas: kitchens, canteens, toilets?

Some solutions may be as follows:

• all staff who can work from home will be expected to carry on doing so for a period of time as lockdown restrictions will be lifted gradually.
• phased return by groups of employees or by teams should be considered.
• trial a move to a smaller set of core hours so you can manage meetings and interactions while still offering flexibility for employees.
• stagger working hours so not all staff are in at the same time
• use technology to enhance the working-from-home experience
• manage the flow of people to avoid congregations
• revise seating plans
• limit time spent in conference rooms

As certain teams or parts of the business return to work detailed risk management will be necessary to safeguard health and minimise the risk of infection:

1. work in close collaboration with your health and safety teams wherever possible.
2. communicate to staff on a regular basis the practical measures you are taking to help reassure them that their health, well-being and safety is your top priority.
3. make sure employees are clear about what procedure they should follow if they begin to feel unwell, both in the workplace and at home.

Key protection and hygiene measures will continue to apply to minimise the spread of infection:

1. remind staff about regular and effective handwashing
2. continue to provide hand sanitiser
3. carry out a deep-clean before you reopen the workplace
4. ensure all phones/keyboards etc are wiped daily with anti-viral cleaner.
5. depending on your working environment you may need to consider providing additional PPE, including gloves and masks – if so training/briefing staff on their correct usage will be important.

Perceptions of safety are as important as the actual level of safety being provided in making sure staff feel comfortable returning to work:

1. adjust sickness policies to ensure rapid responses where required
2. clear communication around the H&S measures you are putting in place and why you are doing so is important
3. consult with staff to understand their concerns in returning to the workplace
4. a phased return to work ensures employees get to hear from their peers who have already been into work about the H&S measures in practice
5. prepare for the potential shut down of the office if an employee tests positive – a rapid exit plan is required in advance of bringing staff back to work

Staff who travel to clients or visit other company premises may also need additional equipment or briefing:

Remote meeting facilities and video-conferencing should be encouraged wherever possible to minimise the need for staff to travel and/or use public transport.

The risks to people’s health from this pandemic are psychological as well as physical as a result of the following and all need to be treated sensitively:

1. anxiety about the ongoing health crisis and fear of infection, as well social isolation due to the lockdown.
2. challenging domestic situations, such as juggling childcare or caring for a vulnerable relative, as well as financial worries if a partner has lost their income.
3. they may have been dealing with illness, or bereavement
4. they may have concerns over travelling to work on public transport.

It will be important to have a re-induction process for returning staff. Every manager should have a 1:1 with every employee with the focus on:

1. health, safety and wellbeing – be sensitive to concerns, give them time to air them and ask questions
2. inform them of any changes to services or procedures
3. inform them of changes to their duties or tasks
4. check they are comfortable coming to work, listen to concerns, be flexible where possible
5. allow continued home working or a phased return to work if domestic situations make travelling to work challenging

It is important that employees feel they are returning to an inclusive workplace. Managers need to be sensitive to underlying tensions that may have resulted from an unequal impact across the workforce and feel confident about tackling them:

1. different employees or individuals will have been affected in diverse ways depending on their job role or individual circumstances
2. some may have been furloughed on 80% or 100% of pay
3. others may have continued to work and may have had increased workloads

Post lockdown, when the time comes for companies to start bringing employees back into the workplace, businesses will come under intense scrutiny regarding how they manage the wellbeing of their staff. Employers will therefore have to carefully consider their reintroduction strategies.

For any help at all please contact or on +44(0)7917878384