June 22, 2020
As we move out of lockdown as directed by the Government, businesses are starting to open and employees are expected to return to work. According to a recent survey conducted by the CIPD, 44% of employees are anxious about returning. How do you deal with people who refuse to return to work?
Built into every employment contract is an implied obligation on employees to obey lawful and reasonable instructions given by their employer. It is therefore not unreasonable for employers to expect employees to return to work after 12 weeks of being close down. There is however a number of issues which need to be considered delicately, particularly as a business heavily relies on its employees.
What is the danger they fear?
In COVID-19 times, what is the danger likely to be? Risk of death would seem extreme/ unlikely. So, the more likely danger is catching COVID-19 and falling ill and/or being a silent carrier and taking it back (unbeknown to them) to their friends/ family who may be vulnerable. According to a recent report, four in five workers are apparently worried about putting their family at risk. If an employee is living with a family member who is shielding, this is something an employer should take into consideration as separation within one family home may be difficult.
Do they have a “reasonable” belief?
The key question is whether the employee has a “reasonable belief” that they will be put in danger of catching COVID-19 despite the measures you are taking. COVID-19 is a real threat and we are still not at the stage where the R rate is low enough social distancing is not required. We therefore need to assess, is their fear of danger reasonable?
To ascertain if it is a reasonable belief, we suggest you take the following steps:
- Show them the government guidance (i.e. one of the 8 sector specific guides) so they can see the adjustments that the government says you should put in place to reduce the danger.
- Tell them that the requirement is to reduce the danger to “the lowest reasonable practical level”- see section 1.1 make sure to inform them that there is no requirement to eradicate it altogether, as no workplace can definitely be made COVID-secure).
- Tell them what adjustments you are making to reduce the danger. It is recommended to circulate any health and safety risk assessment and any new policies.
- Ask them what other adjustments they think you need to make. It may be beneficial to offer an open and collaborative approach for employees to offer suggestions.
- Consider whether you can make those adjustments and, if not, why not (and make a note of your reasons and circulate to employees).Undertaking this exercise should help you assess if their belief is reasonable. It also follows that if you are able to make the extra adjustments the employee has requested, then any ongoing fear/ resistance to return to work is more likely to be unreasonable.
What about pay?
If the employee refuses to return to work, and, instead, stays at home (but is unable to work from home, is this paid or unpaid leave?
First, if you think that their belief is unreasonable (see above), it would be open to you to not pay them. If, however, their belief is more likely than not to be reasonable, then any decision not to pay them would likely be classed as a detriment which would leave you exposed to a claim by the employee for being exposed to danger.
If, however you can prove the reason for not paying the employee is due to their nonattendance, rather than focusing on their fear of attending work, this may limit your liability to a claim.
This is an area of law which is continually changing in uncertain times. We endeavour to bring you the most up to date information and advice, however if you would like further advice and assistance please do not hesitate to contact Zara O’Hare on 0161 667 3697 or zara@prosperitylaw.com
