What should the employer do if an employee is reluctant to return to work as the coronavirus restrictions are lifted?
Employers should recognise that many people will naturally be nervous about attending work 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.
The Governments of Northern Ireland, Scotland and Wales have continued to advise employers to support employees to work from home if possible. In England, the working from home guidance is in place again for office workers from 13 December 2021, having been lifted for some months. Where it is not possible for employees to work from home, an employer should ask employees to attend the workplace only once 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 reluctant to attend the workplace because they have health concerns that make them vulnerable from coronavirus, the employer should discuss alternatives with them, taking into account the duty to make reasonable adjustments, which is likely to apply in many cases.
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.
Where it is possible for the employee to carry out the work from home, the employer should consider whether it is genuinely necessary for them to attend the workplace. Employers should follow the government guidance and support employees to work from home if they can.
The employer must ensure that it is acting reasonably in requiring the employee to return, or it risks a claim of constructive dismissal. It should also be aware of the potential risk of discrimination, eg on grounds of disability or sex, depending on the employee's circumstances.
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. Where employees cannot work from home, 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.
Ultimately, the employer 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.