A recent survey conducted by the Chartered Institute of Personnel and Development found that 44% of employees were anxious about returning to their place of work in light of the current coronavirus situation. So what happens if an employee refuses to come back to work?
A Reminder – Working From Home & Furlough:
On 26 March 2020 the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into effect. These made it an offence for a person to leave their house to go to work unless that work cannot reasonably be done from home. This rule has not changed.
There are still a number of workers who should not be required to attend the workplace. These include:
- Workers who can work from home (as per the Regulations above)
- Workers who are clinically extremely vulnerable to Covid-19 and are shielding – this is now advised beyond the original 12 weeks such that they should not leave their home until at least the end of June
- Workers who are required by public health guidance to self-isolate if they have symptoms (7 days) or are living with others who do (14 days)
- Additionally workers with parental responsibilities who may struggle to attend work. Can be furloughed at the employer’s choice
The Government guidance says that while workers who are simply clinically vulnerable (not those who are shielding) can be asked to attend the workplace, they must be given the safest possible roles where they can maintain 2m social distancing. Health and safety law has always offered special protection to new and expectant mothers who must be suspended on full pay if they cannot be offered work that is safe.
WHAT TO DO IF AN EMPLOYEE REFUSES TO COME BACK WORK….?
So what if your work cannot be done from home & you have employees who, according to the above criteria, could return? Also what happens as more lockdown easing measures are introduced which further extend who can return to the workplace?
Generally speaking, employers need to do everything ‘reasonably practicable’ to protect workers from harm. This means balancing the level of risk against the measures needed to control the real risk in terms of money, time or effort. However, you do not need to take actions that are grossly disproportionate to the level of risk as an employers’ duty is to take reasonable steps to ensure the safety of employees, as it is recognised it is not possible to protect them against all possible harm.
We sent you lots of info last week about the actions the Government are expecting you to take which you might reasonably assume would mean you had done everything necessary regarding C-19 safety, and could then require staff to come back into the workplace.
But, it appears that there is now a lot of chatter about Sections 44 and Sections 100 of the Employment Rights Act with Trade Unions wading in and a few firms selling their services in helping employees refuse to attend work. Barristers have been fairly publicly debating this matter over the weekend but they haven’t reached a consistent conclusion.
Sections 44 and 100 of the Employment Rights Act 1996 protect employees from detriments such as loss of pay or dismissal if:
- They left or refused to attend the workplace because they reasonably believed there was a serious and imminent danger that they could not reasonably avoid
- They took appropriate steps to protect themselves or others because they reasonably believed there was a serious and imminent danger
The Act explicitly protects employees but there is a suggestion it may apply to workers too. It is fair to suggest that when sections 44 and 100 of the Employment Rights Act 1996 were drafted, they probably didn’t consider a global pandemic but we now have to consider how employees may apply it if they have concerns about returning to work.
The critical point about Sections 44 and 100 of the ERA is that this is all about the employee’s perception / assessment of the danger.
So as an employer you could make the argument that by you complying with all necessary Government Guidelines and taking all necessary precautions your employees could not have a reasonable belief of serious and imminent danger, therefore if they refuse to come into work you can simply not pay them. It is not clear cut at this stage that you would be successful in taking this position and could find yourself in tribunal.
You could decide to furlough (or keep on furlough) on 80% pay, anyone who refuses to come into work quoting Section 44 of the ERA, but it will be crucial to have the employee’s agreement to this. If you force furlough without agreement and don’t top pay up to 100% (i.e. create a detriment in reduced pay) you could find yourself facing a claim for unlawful deduction from wages. We imagine a lot of employees would agree to be furloughed / continue on furlough at 80% but there may be some who push for the full 100% pay.
Employers might still make the commercial decision to furlough at 80% if current cash flow doesn’t allow for topping up pay, thinking that any tribunal claim is likely to be some time in the future at which point the pay issue can be resolved then, as the liability will only be for the 20% top up pay. However, there is a risk that an employee may also be able to claim an award for injury to feelings as well. There is also the risk an employee might resign and successfully claim constructive dismissal and an award for a longer term loss of earnings. But it is high risk for employees to resign unless they have a new job to go to (in which case compensation is limited), and so this is probably a lower risk for many employers given the current job market.
Equally you may reach a point where you feel you have no choice but to dismiss an employee who won’t come back to work under section 44– this may of course carry risks of a claim for unfair dismissal and there is no two year qualifying period to bring such a claim where an employee is asserting a statutory right.
So What Can You Do?
An employer that has taken careful steps to consider all health and safety implications of C-19, provides appropriate “facilities” such as the ability to distance and the appropriate protective equipment, and gives advice to its employees on how to keep safe, will be in a far stronger position when dismissing or not paying an employee for refusing to attend work in relation to health and safety than one that hasn’t.
So it is crucial that you read the Government Guidance on Covid-19 Secure Workplaces and take all appropriate measures. We have produced a pack that contains guidance notes, an infection control policy, a return to work assessment for the business and one for individuals as well as return to work letters. These will help you to evidence what measures you are taking – contact us if you’d like more info.
This HR Support Pack and the Government Covid-19 secure workplace actions run alongside any necessary Health & Safety Risk assessments that you may also need to carry out.
One critical action will be to communicate with your employees. Show them everything you are considering and doing, and involve them in actions to make the workplace safe. Listen to their concerns and find ways to address them. Recognise that some people are fearful and need a lot of reassurance. People need to feel their concerns are being taken seriously. Maybe they don’t fully understand what the risks might be and you may need to provide information and education. Now is definitely a time to get innovative in finding flexible ways for employees to work and be safe.
As always – prevention is better than cure so finding ways to have people return to work confident in the protective measures you have taken will always be preferable to trying to deal with those who refuse.
Contact us if you need support with any of the above or want to know more about our Return To Work Package.