Electra HR

Can an employee refuse to come back to work?

While the government has issued clear instructions that staff who can work from home should continue to do so (we believe this will be the case for quite some time and many businesses are already thinking about a much more flexible way of working after having been forced into “making it work” with little notice… but this is a subject for another blog), there is also a raft of guidance that has been issued and in order to not fall foul of Health and Safety legislation this must be followed (spot checks by HSE will be carried out).

So far, so good.

But what happens if you have implemented all required measures and are now planning to slowly bring some employees back?

First things first.

If, the employees in question are currently on furlough (this is likely as you shouldn’t be bringing staff back who can work from home), then it all depends on what period of notice to end furlough you have put in your furlough letters. There is no hard and fast rule and we have seen clients choosing anything from 24 hours to several weeks.

Remember, the furlough letter is a contract amendment and therefore contractually binding. So if you advised you will give 1 week notice to return from furlough then you need to stick to that unless you mutually agree with each employee to reduce the notice.

Other than that, you are able to bring staff back as required as long as you ensure their health and safety.

And this brings us to the reason an employee could use when refusing to come back to work – an employee has the right, if they have a reasonable belief of ‘serious or imminent danger’ to their health and others around them, to refuse to work. This is enshrined in law – in section 44 of the Employment Rights Act 1996.

The actual purpose of section 44 is in fact the right of an employee not suffer detriment for leaving (or refusing to return to) an unsafe place of work.

It is likely that we will see an increase in employees making use of their right, in particular with unions taking a very firm view and ensuring that rights of workers in relation to Covid-19 safety are well publicised.

In order to avoid any problems when you are the point of slowly opening up and bringing some staff back we would recommend you fully follow the government/HSE guidelines to make your workplace Covid-safe (the guides are available from: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19). Ensure you carry out a risk assessment and above all communicate with your employees (explain the measures you have put in place, why you have done so, why you may not need certain things) and listen to any concerns.

If relations with an employee turn sour and they don’t want to come back because they are concerned about their safety remember that they are protected from detriment and that there should not be a disciplinary procedure or indeed dismissal (any dismissal linked to their safety concerns would automatically become an unfair dismissal without the need for a minimum service length, unless you can prove that the dismissal was for something unrelated).

You also need to bear in mind that whilst you are not responsible for your employees’ journey to work, the reason someone may be hesitant coming back to work is because they have to use public transport (which the government actively discourages and which is running at 10% of the normal capacity). In this case an employee could very well have rights associated with the Flexible Working Regulations 2014.

We are here to help if you are unsure how to deal with a difficult situation so please don’t hesitate to get in touch!

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