Understandably, your employees may have reservations about returning to work. However, with the furlough scheme drawing to a close, the reality is that employees are going to have to face the prospect of returning to work.

Returning to work at a time where just as life started to look a bit more ‘normal’ there has been a concerning rise in the number of newly diagnosed cases may lead to further anxiety about the prospect of returning.

But what should you do if an employee is reluctant or refuses to return to work

Ensure that the workplace is COVID secure

First and foremost, if you have not already done so take some time to ensure that work can be undertaken safely in line with the Government’s COVID-19 secure guidelines by carrying out a risk assessment. For example, if your employees cannot work from home, consider how you can ensure social distancing and maintaining a thorough cleaning regime in the workplace. Examples of measures that you might be able to implement include:

  • Implementing 2-meter markers on the floor;
  • Put up signs reminding people to keep 2 meters apart;
  • Using screens to create a barrier between people;
  • Implementing one-way systems;
  • Rearrange working spaces, so people work back to back;
  • Limit rotation between equipment;
  • Implement staggered start and finish times;
  • Require staff to wear face masks (unless medically exempt);
  • Ensuring a sufficient supply of hand sanitiser.

If you have five or more employees, it is a legal requirement to have a written statement on health and safety at work. You must bring this statement, and any revisions, to the attention of all your employees. Even if you have less than five employees, it is still advisable to have a written statement; your employees will take comfort knowing all reasonable steps have been made to reduce any risk to their health.

You can find more information on the governments COVID secure guidelines at www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

Determine the underlying reason for the reluctance/refusal to return to work

Before taking any action, or even deciding on a course of action, any employer faced with an employee refusing or reluctant to return to work must discuss with the employee why it is they feel the way they do. Reasons may include:

  • Anxiety/fears about contracting COVID-19 generally;
  • Their vulnerability in light of an underlying health condition/disability;
  • The vulnerability of close relatives/family members.

Taking the time to understand the employee’s concerns and reasons allows you to explain all the measures that you have put in place to ensure their safety and explore other actions that may reassure them that it is safe to return to work. It may be that after discussing the situation with them, allowing them to work from home or redeploying them into a different role that is more suitable for home working is the best solution. However, in many industries, that may not be possible. In such cases, the reason for the refusal/reluctance will ultimately depend on how to deal with the situation.

Anxiety/fears about COVID-19

If the employee has no underlying medical condition and you are unable to reassure them that a return to work is safe, it is advisable to write to them setting out the steps taken to ensure their safety at work and when you expect them to return.

If despite that they refuse to return to work, you may treat the refusal as a failure to follow a reasonable management instruction and an unauthorised absence. However, proceed with caution before rushing into any disciplinary as dismissals related to the raising of health and safety concerns are automatically unfair. Therefore it is essential to address any health and safety concerns raised by employees.

As a last resort, you may wish to consider allowing the employee to annual leave or a period of unpaid leave. Ultimately though, if the employee’s anxiety prevents them from returning to work, they may seek medical guidance from their GP and end up being certified as unfit to work by their GP.

Also, note that if the anxiety is extreme, then it could amount to a disability. In such cases, it is advisable to get medical evidence to determine whether the employee is disabled (within the meaning of the Equality Act 2010) and if so, what adjustments, if any, could be made to assist the employee in returning and continuing to work.

The employee’s vulnerability/disability

If you have employees with underlying medical conditions or disabilities who are unable to work remotely, you should carry out a risk assessment specific to them and put in place any measures to reduce risk. If despite that risk assessment the employee is still unwilling to return to work then seek medical evidence with the aim, as above of determining whether the employee is likely to be deemed disabled and what adjustments, if any, can be made to assist the employee in returning and continuing in work.

Shielding relative /vulnerable relative

Understandably, an employee may be concerned about the risks of infecting vulnerable relatives. If that is the case, it may be that allowing the employee to work from home, where possible, resolves the concern.
There is at present no requirement for the clinically extremely vulnerable to shield, and even when there was nothing in the guidance expressly required anyone living in the same household as someone who is practising shielding to stop working. However, that does not mean that those living with vulnerable or disabled individuals are no longer worried about their safety. If an employee has concerns as a. result regarding return to work, then you should discuss this with the employee and address them. If no agreement can be reached on how they can return to the workplace whilst continuing to keep their loved ones safe, then it may be worth considering whether it is possible to allow a period of unpaid leave.

Note that the Equality Act 2010 does prohibit associative discrimination. Therefore care must be taken to ensure that the employee raising concerns in this context is protected against direct discrimination, harassment and victimisation because of their association with a disabled person.

Keep open lines of communication

There is no immediate end in sight of the current health crisis. Therefore employers must keep an open dialogue with employees so that they can address their concerns regarding returning and maintaining their attendance in the workplace. With the colder months nearing and cases of coronavirus rising it is important to remember that employees feelings regarding being at work are likely to evolve and care must be taken to ensure that the work environment remains safe and that employees feel supported.

If you need help addressing reluctance or refusal of employees to return to work and would like advice on how to manage the situation, please do get in touch – I’d be happy to help.

This blog provides general guidance only. Expert advice should always be sought in relation to particular circumstances.  

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