Government guidance to work from home where possible has now ended. As an employer, you may wish your staff to return to the office. However, some of your employees may be reluctant to return, whether on a full or part- time basis, many of whom will have been working from home for some time.
Employees may still have concerns about the spread of Covid, particularly in the workplaces where they will spend the majority of the day in the company of others. Many may feel particularly unsafe if they are unvaccinated, medically vulnerable, or they are living with a person who is vulnerable.
To help employers on their next steps when dealing with the return of employees we have put together guidance on some of the top things you should consider, including whether employees can refuse to return to work, and the steps employers should take where this issue arises.
Can an employee refuse to return to the workplace?
Yes, but only in certain circumstances. An employee may have legal protection from any detriment, including dismissal, if they reasonably believe that returning to the office would put them at risk or serious and imminent danger. Any such belief has to be ‘reasonable’ but of course opinions on this can vary strongly.
Employers should consider any refusal to return on a case-by-case basis, taking into account if the employee:
- Is clinically vulnerable or unvaccinated, or lives with someone who is.
- Suffers from mental health issues such as anxiety.
- Has other higher risk factors, for example a physical disability or pregnancy.
Even if an employee does come within one of these categories, this does not mean a refusal to return to work will necessarily be reasonable but employers should give this careful consideration. This may involve carrying out a risk assessment, which should certainly be done for any pregnant employees as a matter of course.
Employers should also be aware of possible claims around discrimination, especially where an employee is disabled. Employers are legally required to make reasonable adjustments for disabled employees; in some cases, allowing an employee to work from home may be considered a reasonable adjustment.
What can I do if an employee refuses to return to work?
If an employee does not have a valid reason to refuse a return to work and their employment contract requires them to work at a certain location, you may be justified in taking disciplinary action should the employee refuse to do so.
You would have to follow your disciplinary procedures for a failure by the employee to comply with their contractual obligations. The safest approach would be to seek legal advice first, which our employment law specialists are well-equipped to give. They are also able to advise you on other non-legal but equally important considerations, such as the risk of negative publicity.
Can disciplinary action be taken against an employee refusing to return?
If an employee does not have a valid reason to refuse a return to work, they have a contractual obligation to return to their previous position in their usual place of work. You must provide the employee with reasonable notice.
As a result, an employer will be justified in taking disciplinary action should an employee refuse to do so. You must follow your disciplinary procedures for a failure to follow reasonable instructions or for absence from work. We would however recommend caution in disciplining employees who refuse to return to work, and potentially seeking legal advice on your specific circumstances.
How can we help?
Please get in touch with our employment lawyers if you require advice generally or help with anything relating to this topic.