15 July 2021
With the government looking to lift most restrictions by 19 July 2021, employers are likely to encourage or require more employees to be back in the workplace, even if that is not on a full-time basis.
Some will be anxious about returning to the workplace; others might refuse to go at all. What should employers think about when bringing people back to the office?
1. Where are employees supposed to be working?
Despite the easing of restrictions, everyone who can work from home should continue to do so until 19 July at the earliest, when the government is set to review its work from home policy.
If a job cannot be done from home, employees should go to the workplace, unless:
a. they are self-isolating because they have coronavirus symptoms;
b, they have been in contact with someone who has tested positive; or
c. they are in quarantine after travelling abroad.
2. Can employees keep working from home if the advice changes?
Employees can ask if they can carry on working from home even if the advice changes, but the employer does not have to agree to the request.
A decision as to whether someone can work from home will depend on a number of factors depending on individual circumstances and the type of job.
Employers have a duty of care to their employees and must treat people reasonably and fairly and be as flexible as possible when dealing with any concerns its employees might have.
Many employers are looking at introducing hybrid working policies which set a number of days per week that people can work from home or, in more extreme cases, are getting rid of the office altogether.
We would advise against putting policies in place which are set in stone. How the workplace will evolve over the next few months and years is anyone’s guess. We would, therefore, recommend when introducing policies to explain that as an employer, you are trying to work out the best way to function which will require flexibility from both sides.
3. What must employers do to keep people safe?
For England, current guidance states that employers should complete a coronavirus risk assessment and take steps to prevent transmission, including:
a. minimising unnecessary visitors;
b. ensuring 2m (6ft) social distancing or 1m (3ft) social distancing with additional precautions;
c. frequent cleaning;
d. extra handwashing facilities;
e. introducing one-way systems to minimise contact;
f. using back-to-back or side-to-side working (rather than face-to-face) whenever possible;
g. staggering start and end times; and
h. encouraging the wearing of face masks where appropriate.
3. What if, having taken these measures, an employee still refuses to come back to work?
If an employee can perform their job perfectly well at home, has met all their targets and their absence from work is not adversely affecting their co-workers, it would be hard to see a situation whereby they could be dismissed for failing to return.
Alternatively, an employer could consider:
a. keeping someone on furlough if they were temporarily unable or unwilling to come to work;
b. arranging for someone to work different hours on a temporary basis so that they could avoid off-peak travel; and/or
c. seeing whether that employee wanted to consider taking time off as holiday or unpaid leave.
A recent case, which is summarised below, shows that an employer can dismiss employees who refuse to attend the workplace in certain circumstances.
4. What about taking disciplinary action against an employee who refuses to return to work?
As to whether an employee’s refusal to return to the workplace may give rise to disciplinary action, consideration should be given to the place of work set out in the employee’s contract of employment and whether it may be regarded as a reasonable instruction in the circumstances to require the employee to return to the workplace.
For that refusal to amount to misconduct, there must have been a breach of a disciplinary rule, or a failure to comply with a lawful or reasonable instruction from the employer.
An employee is under a general obligation to follow the lawful instructions given by their employer. Usually, a question of whether the order is lawful or not depends on whether it is in accordance with the employee’s contract of employment. If it is, the employee is generally committing an act of misconduct in refusing to comply with it.
Even if the employee committed an act of misconduct by refusing to obey the instruction, that act of misconduct might not necessarily be sufficiently grave to justify the employer dismissing the employee.
In all instances, an Employment Tribunal would consider whether the employer acted reasonably in treating the employee’s conduct as sufficient to lead to a dismissal in all the circumstances.
The questions which a Tribunal will look at, and therefore what employers should look at, are:
a. examine the employee’s conduct;
b. evaluate that conduct in the light of the circumstances as they existed or as the employee reasonably thought they existed;
c. decide where the employee’s conduct falls within the spectrum of the wholly reasonable or the wholly unreasonable;
d. evaluate the employer’s reaction to that conduct;
e. ask, in accordance with equity and the substantial merits of the case, whether the employer acted reasonably or unreasonably in treating the employee’s conduct as a sufficient reason for dismissing him/her;
f. ask whether the employer could have taken an alternative course of action; and
g. reach a conclusion – the issue at hand is whether the particular dismissal, at the time and in the circumstances in which it took place, was reasonable; not whether a dismissal at a later date was likely to have been reasonable.
5. A Recent Case
There has been a lot of commentary about whether an employer can force an employee back to work but there is little case law, in part because of the backlog in the Employment Tribunals which has been worsened by the pandemic.
One judgment which has been issued is in the case of Rodgers v Leeds Laser Cutting Limited (1803829/2020).
Here, Mr Rodgers (Claimant) was employed as a laser cutter with Leeds Laser Cutting Limited (Respondent).
The place of work was a large warehouse-type space and, typically, there were five people working on the shop floor during the Claimant’s working hours. On 16 March 2020, one of the Claimant’s colleagues displayed symptoms of coronavirus and was sent home to self-isolate. The Claimant said he had been in close contact with this colleague and feared he might have been exposed to infection.
Following the announcement of the first national lockdown on 23 March 2020, the Claimant absented himself from work, citing his fears about coronavirus. The Claimant had two young children at home, one of whom suffered from sickle-cell anaemia.
The following day, the Respondent posted an employee communication which confirmed that the business would remain open and that measures were being put in place to ensure work could continue as normal. The Respondent also hired an external professional to carry out a risk assessment.
The Claimant continued to stay away from the workplace and was subsequently sacked on 24 April 2020.
Claim brought by the Claimant
Because the Claimant had worked for less than two years, he could not bring a claim of ordinary unfair dismissal. Instead, he brought a claim of automatically unfair dismissal due to health and safety reasons.
His case was that he was dismissed, and the principal reason was:
a. because he left the workplace and then refused to return when he reasonably believed to be in serious and imminent danger which he could not reasonably have been expected to avert; and
b. he took reasonable steps to protect himself or other persons from the serious and imminent danger.
It was found that the Respondent had taken reasonable steps to ensure employee safety at the workplace:
a. conversations were held with the workforce about safe working practice during the pandemic;
b. social distancing measures were put into place;
c. the staff were encouraged to wash their hands at regular intervals;
d. surfaces were wiped down regularly;
e. start and finish times and lunch and break times were staggered; and face masks for staff were made readily available.
As a result, the Tribunal found in the Respondent’s favour. Whilst it was clear that the claimant had justifiable concerns about coronavirus in general, he could not attribute those concerns directly to his place of work meaning that his claim failed.
It was of note that the Claimant did not raise any concerns about fears for his safety in the workplace, or that of his colleagues, to his employer either before or after he refused to attend work.
If you have any enquiries about this or any other employment law matters, please contact Gill Brown or Jacqueline Kendal in our Employment Law team:
Alternatively, click here to go to our contact page.
This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.
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