What should the employer do if an employee is reluctant to return to work as the coronavirus lockdown is lifted?
Employers should recognise that many people will naturally be nervous about leaving lockdown and increasing their risk of contracting coronavirus (COVID-19). If an employee is reluctant to return to the workplace, the employer should explore their reasons and try to address any specific concerns they have, taking their individual circumstances into account.
Government guidance remains that employees must work from home wherever possible. An employer should ask employees to attend the workplace only if the work cannot be done at home and only if it has taken all reasonably practicable steps to reduce the risks from coronavirus. Employers should communicate clearly with employees about the measures that have been put in place.
If an employee is shielding because they are clinically extremely vulnerable from coronavirus, or is unable to return to work because they have childcare responsibilities, their employer should not require them to return to work. It should explore other options, such as adjusting the employee's role to enable them to work from home, or keeping them on furlough. If an employee has health concerns that make them vulnerable from coronavirus, but they are not in the shielding category, the employer should still consider alternatives to requiring them to return to work, taking into account the duty to make reasonable adjustments, which is likely to apply in many cases. Taking disciplinary action against an employee in any of these circumstances could leave the employer open to a number of claims, including discrimination.
If an employee has concerns about using public transport to get to work, the employer should discuss with them if there are options to allow them to travel at a quieter time, by changing their start time for example. The employer must comply with the duty of mutual trust and confidence, and so should consider if it is fair and reasonable to expect the employee to use public transport. The fact that some employees are prepared to use public transport does not necessarily mean that it is reasonable to expect others to do the same.
If the employer is confident that it is reasonable to instruct the employee to attend work, after putting in place measures to control the risks and exploring the employee's individual circumstances, the employer must consider its options. One option is to ask the employee to agree to a period of unpaid leave. If they do not agree to this, the employer may decide to withhold their pay in any event. The employer also has the option of taking disciplinary action leading to dismissal, although this option is likely to present more of a risk, in terms of tribunal claims and reputational damage, than withholding the employee's pay.