Now that employees are no longer being told by government to work from home if possible, what can employers do if an employee refuses to return to the workplace? Lots of people as still very anxious about Covid 19 and particularly so if they are immuno-suppressed or a close member of their family is at particular risk.
The key thing is always to be reasonable, to show that you have discussed the issues with the employee and explored all options and crucially to keep an audit trail of everything you have done, including risk assessments. Your audit trail will need to include the reasons you have for wanting the individual to be in the workplace.
Employers need to remember is that whilst the Covid restrictions and requirements are no longer in place, employers still have a legal obligation to maintain a safe working environment under the Health & Safety at Work Act 1974. The Act requires at s2 that “It shall be the duty of every employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees” and at S2(e) “the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work”. So, you will need to continue to maintain some if not all of the safety measures you put in place to protect your staff from Covid 19.
If your member of staff is refusing to return to the workplace because they are immuno-suppressed then (hopefully) you will already know and almost certainly the individual has a disability as set out in the Equality Act 2010. You should consider whether working from home is a reasonable adjustment. Your audit trail should show that you have discussed this with the employee and why it was – or was not – considered to be a reasonable adjustment. If working from home is not possible then you should consider what else can you do to make reasonable adjustments. If the employee can show that working from home was possible – perhaps they have already done it during the height of the pandemic – then you are on thin ice if you get a disability discrimination claim.
Likewise you may have to consider associative disability discrimination if the employee is a carer for someone with a disability and the employee is afraid to return to the workplace in case they pass the virus to the vulnerable person for whom they are a carer.
Can you dismiss an employee for not returning to the workplace? That will depend on the reason they give for not returning to the workplace.
The most likely scenario is that the reason for not returning (or leaving) the workplace is that they have a “reasonable belief” that they are in “serious or imminent danger”. This is covered under s44 and s100 of the Employment Rights Act 1996 which gives employees protection from being dismissed for health & safety reasons. If you have done everything practical to make your workplace safe, up to and including risk assessments, then an employee is unlikely to be able to show they were in serious danger. Social distancing where possible, cleanliness, the availability of sanitiser and encouragement to wear masks are all useful things you can do to protect your staff and to avert any danger of an unfair dismissal for Covid related health and safety reasons.
Recently an employee claimed at Employment Tribunal that her concern about catching Covid amounted to a philosophical belief under the Religion or Belief strand of the Equality Act. The Tribunal dismissed her claim and said that her fear did not amount to a philosophical belief. However please be aware that a refusal to take the vaccine may be covered by religion if the individual can show that not being vaccinated is a serious part of their religion.
Covid hasn’t created a new fair reason for dismissal. Employees continue to have the right not to be unfairly dismissed so you must follow your policies and procedures at all times. Communicate your reasons for requiring the individual to be in the workplace, provide opportunities for the individual to put their case, warn them that they are in danger of dismissal and if no way forward can be found then dismissal may be your only option.
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