While many organisations have been required to close during this third period of lockdown, there are still a number of businesses that are allowed to remain open and are essential in keeping the country moving.
However, with coronavirus cases at an all-time high, there will be members of staff who refuse to attend work because they feel it is unsafe to do so.
Our blog on working from home - practical considerations may also be useful for employers who still have employees working remotely.
What can I do if an employee refuses to attend work due to COVID-19?
As a result of the government’s current guidance, employers should allow employees to work from home wherever possible. Where it is not possible for employees to work from home, an employer can require employees to attend the workplace once it has taken all reasonably practicable steps to reduce the risks of contracting coronavirus, such as sanitising workplaces and carrying out risk assessments.
Employers should communicate clearly with employees about the measures that have been put in place in order to ease any concerns. If an employee continues to be reluctant to return to the workplace, an employer should explore their reasons.
We outline some common reasons why employees may refuse to return to work and how an employer can tackle them.
1. Shielding employees
If the government or NHS has advised the employee to shield, then it is very likely that they are suffering from a condition which will amount to a disability for the purposes of the Equality Act. They may have been issued with a letter from the NHS and employers can request a copy of this letter which will help to guide them in understanding the risk for that employee.
According to government guidance, employees who are shielding are eligible for furlough if they cannot work from home. While there is no legal requirement for an employer to agree to this, it is advisable to place them in furlough and, if necessary, make a claim under the Coronavirus Job Retention Scheme. Please note, however, that if the employee is off sick and on statutory sick pay, it is not possible for them to be furloughed – they will need to be taken off statutory sick pay first.
2. Using public transport
If an employee has concerns about using public transport to get to work, an employer should discuss with them if there are options to allow them to travel at a quieter time for example, by changing their start or leave time. Extra car parking spaces could be offered, where possible, so that the employee could avoid using public transport. However, this reason in itself will not justify the employee not coming into work.
3. Childcare arrangements
On 5 January 2021 guidance was updated to confirm that employees may be furloughed if they are unable to work, or are working reduced hours, because of caring responsibilities which have arisen as a result of COVID-19. If an employee is unable to return to work for this reason then an employer should explore other options, such as adjusting the employee's role to enable them to work from home, or putting them on furlough.
4. Living with a relative with health concerns
Here, the specific circumstances would need to be analysed to identify whether there is a risk of discrimination, or other risks, if the employee is treated detrimentally as a result of their desire to remain away from the workplace.
The law on associative discrimination does not protect the relative of a person with a protected characteristic against failure to make reasonable adjustments, discrimination arising from a disability or indirect discrimination. However, they are protected against direct discrimination, harassment and victimisation. As a result, reasonable steps should be taken to ensure that the employee does not suffer repercussions because of their association with someone who has a protected characteristic and falls within one of the vulnerable groups.
We would advise that the employer considers all possible options and a risk assessment is carried out in order that the employee feels comfortable to attend work.
When can an employer take disciplinary action?
Employees are protected from both detriment and dismissal for certain, protected health-and-safety-related conduct, including refusing to present for work in certain situations, and any such dismissal will be deemed automatically unfair.
Unlike claims for “ordinary” unfair dismissal, which have a two year qualifying service requirement, claims for automatically unfair dismissal and detriment are not subject to an employee having any minimum length of service. It is therefore important before considering disciplinary action, that an employer understands the employee’s reasoning for refusing to attend work.
However, if an employer has ensured that the safety of the employee is not at risk and after considering all factors, there is no valid reason why the employee is unable to attend work, any absence can be treated as unauthorised which will warrant disciplinary action which could include dismissal on the grounds of gross misconduct.
We’re here to help
If you’re considering disciplining or dismissing an employee for refusal to attend work and need some guidance or advice, speak to a member of your local employment team.
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