The end of lockdown is in sight and a return to normality is beckoning but what about employees who are hesitant to return to work? Employees coming back to work post-lockdown or post-furlough raises a number of important questions for both employers and employees, particularly where it is impossible for employees to work from home. For example: can an employer order its employees to return to work in circumstances where employees may not feel that it is safe to do so?
Before going down this route, an employer needs to investigate the reason behind the refusal. Where an employee has reasonable grounds for refusing to come into the workplace, any disciplinary action up to and including dismissal could potentially be unfair.
In addition, an employee could reasonably refuse to return to the workplace if they had justifiable health and safety concerns, e.g. if an employer is unable to ensure proper social distancing measures or provide them with adequate PPE.
For the clinically vulnerable or pregnant employees, HR should have conversations and conduct risk assessments to determine what measures could be put in place to ensure they feel safe and supported at work.
To avoid disability discrimination where an employee has a protected characteristic under the Equality Act 2010, organisations should work with occupational health teams to consider whether reasonable adjustments are needed.
Employers should exercise caution and seek specific advice when considering taking disciplinary action against any members of staff who say that they are unable to attend work due to coronavirus concerns.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
