Posted by Gemma Ospedale, Partner
Returning to work in the coronavirus world: Part 2 – Staff
In this second part of our return to work series, we examine some of the issues which employers may experience in asking people to return to work and risks of which they need to be aware.
In the first part of this series, we looked at preparations which employers need to take to ensure that staff returning to the workplace have a safe system of work. Many returning employees will be concerned about the possible impact on their health, not just within the office itself but also travel arrangements, especially if using public transport. Additionally, many employees will have children, or live with those who are clinically, or extremely clinically, vulnerable, and so have greater concerns about the risk to their health, and that of their loved ones, in returning to work.
In this part, we examine some of the issues which employers may experience in asking people to return to work and risks of which they need to be aware.
Refusal to return to work
If employees are concerned about the risks of returning to work and refuse to do so, employers should think very carefully before implementing disciplinary action. Only if an employee is not clinically vulnerable, and not living with someone who is clinically, or extremely clinically, vulnerable, and the risk assessment has demonstrated that the workstation is safe to return to but they are nonetheless refusing to return to work, should employers consider disciplinary action.
Consider the following:
- Consult with the employee regarding the risks about which they are concerned, and the steps which the employer can take to try and ameliorate these. In particular discuss the results of the risk assessment.
- The risk of dismissing staff for refusing to return to work in these circumstances is high. Employers should encourage their staff to discuss their concerns and find ways of working around these, whether via changes to the working environment or the type of job they do, keeping them away from particularly risky areas such as high-density people movement.
- Try to find practical solutions to their concerns and identify any additional risks particular to that person. For instance, are they shielding a clinically (or extremely clinically) vulnerable person or do they have a protected characteristic which makes them more vulnerable (ethnic minorities and those with disabilities are demonstrably more susceptible)?
- Identify any reasonable adjustments which can be made. Ensure that the process is documented to demonstrate the steps taken to investigate the employee’s concerns and try and find a solution.
- Identify if they can work flexibly in a way which would alleviate their concerns and if there is such a way, insist on their return. If they still refuse to return, you may possibly, depending on the contractual terms, refuse to pay them but this is risky because of a detriment and possible claim, even if it may not be a valid one.
- If they still refuse to return, consider whether they should take unpaid leave or holiday.
- Remember that an employee can be dismissed for refusing to obey a reasonable instruction, but all the above steps need to be taken first before such a step is decided upon and the risks of doing so should be assessed very carefully.
If a business has a high number of employees who refuse to return to work, it could become unsustainable to continue to pay them. In general terms, there is no right for employees to be paid if they are not prepared to work for that pay. So employers could take the view that if they are not prepared to work, they will not be paid. The risks are claims for unlawful deduction from wages and constructive unfair dismissal. The strength of such claims will depend upon the reasons why the employees are refusing to return to work and particularly those who are shielding, or living with those who are shielding. These may be more difficult to defend successfully. Care should be taken to properly explore all the circumstances before adopting this route.
Any dismissals in these circumstances should make it clear that this is not in response to the conduct of the employee but the effect of absence itself, i.e. the fact they are not there to undertake the work required of them. It is not so much the conduct of refusing to return to work, but the effect of that refusal, namely that the work cannot be carried out because they are not there to do it. Again it is vital to ensure good communications with employees, and all discussions and decisions must be documented.
Selection of staff to return to work
- Care has to be given to the selection of staff to return to work following a period of furlough. There is a risk of discrimination claims if, for example, those with childcare responsibilities or disabilities remain on furlough whereas their colleagues without such characteristics can return to work and earn a full wage. The risk of a claim is ameliorated if the employer can pay salary at 100% rather than the 80% of furlough pay, but of course not all employers are able to do this.
- Staff who are not able to return to work because they are either shielding as being clinically vulnerable or extremely clinically vulnerable, or they are living with people in these categories, should be furloughed if possible. The same applies to those with childcare responsibilities as they can also be furloughed. However employers may face difficulties if these categories of staff continue on furlough when the additional employer contributions to the furlough scheme start to kick in, initially from August. If the employer is going to struggle with these additional payments any thoughts of selection for redundancy will need to be carefully considered because of the risk of discrimination claims.
- Everyone should be treated equally and employers should be mindful of the differing needs of various groups such as childcare, disability and age.
- Those with protected characteristics should be identified and specific consideration should be given to whether any of them and, if so how many, are able to return to work safely. Bear in mind that a request to return to work is a provision, criterion or practice (PCP) which may put disabled people at a disadvantage compared to those who do not share their disability.
- It is important not to make assumptions about what people need. For instance, employers may assume that those with childcare responsibilities would prefer not to return to work because of the difficulties encountered. However, in contrast, many may wish to do so to get them out of the house and for a change of scene.
- Reasonable adjustments should be considered for any disabled or clinically vulnerable people returning to work but bear in mind that the adjustment only needs to be reasonable.
- Staff should also be given reasonable notice of being required to return to work.
Employment law risks
- Automatic unfair dismissal claims if employees are dismissed because they are complaining of risks to health and safety. The risk may not just be to their own health and safety, but also to that of others around them.
- The current pandemic would almost certainly meet the gateway to such a claim, that of a reasonable belief of an imminent and serious danger to their own health and/or that of others.
- However, the next limb of the test, whether the employee took appropriate steps to protect themselves and/or others from the imminent danger is very much a question of fact (and the perceived danger does not have to be to the employee or fellow colleagues; it can be, for instance in the current situation, family members). If the employee had no alternative but to refuse to return to work because there was nothing the employer could do to ameliorate the risk to their health and safety, having looked at all circumstances giving rise to the employee’s concerns and discussing this with them, a dismissal in the circumstances could potentially be fair – but extreme care must be taken before dismissing.
- Forcing back to work employees who are shielding because they fall into the clinically vulnerable or extremely clinically vulnerable categories, or are living with people in these categories, could be considered to be a breach of the health and safety guidance and run the risk of claims. People in these categories will have a stronger argument for a health and safety claim because of the serious and imminent risk aspect.
- Risks of whistleblowing claims if employees are treated detrimentally where complaints to the HSE or the local authority have been made if the employee has a reasonable belief of danger to health that is serious and imminent.
- Claims for discrimination, in particular disability or by reason of childcare, if there is a potentially unfair selection of people to return to work. Those who are extremely clinically vulnerable are likely to be found to have a protected characteristic of disability. Imposing upon them the PCP of returning to work could give rise to indirect discrimination claims on the grounds of disability and possible failure in the duty to make reasonable adjustments.
- Treating someone unfavourably (i.e. dismissal, or refusal to pay if they will not return to work) because they are living with someone who is shielding, whose condition amounts to disability, could give rise to claims of associative disability discrimination because that person is being treated less favourably than others who are not living with those who are shielding.
- Possible constructive unfair dismissal claims if employees feel they must resign rather than return to work if they feel their safety is jeopardised.
- Prolonged ill-health absence.
- Possible risks of claims against the employer for negligence and personal injury if employees are forced to return to work in circumstances where they consider their health is in jeopardy and this is reasonably foreseeable.
- One of the most vital points to remember is to ensure that all discussions with employees are documented throughout so that, should any claims arise, there is a clear paper trail as to how the decision which the employer ultimately took which gave rise to the claim is arrived at.
Our Employment & HR team is on hand to steer businesses through the minefield that lies ahead. Contact Partner Gemma Ospedale:
020 7842 1496 Email us
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