Can employees be forced to return to their place of work?

In England, it was decided in early August that it is up to employers to decide how staff can continue working safely. Scotland, Northern Ireland, and Wales are following different advice and guidelines.

As a business, you may be faced with resistance from those who don’t want to return to the workplace yet, or at all, but how do you manage this?

Bringing staff back by mutual agreement rather than by force is what you are aiming for.

The CIPD recommend that employers take an individualised approach, answering these three questions before bringing workers back to the workplace:

• Is it essential?
• Is it sufficiently safe?
• Is it mutually agreed?

Communicate, Communicate, Communicate

Talking openly, consistently, and supportively is fundamental to understand what employee’s concerns are and how best to address them.

Acas advise employers to ‘consult’ with staff, considering their views to try and reach an agreement about returning to work.

Where staff feel involved, they are less likely to challenge or resist decisions.

Focus on the individual

A one size fits all approach is unlikely to be sufficient or effective in encouraging people to return by mutual agreement.

Individuals should have one-to-one conversations with their line managers before any changes are made. This should form part of broader re-induction processes covering adjustments or ongoing support that people need, as well as training staff on new health and safety requirements.

Acas suggest that it is a good idea to talk to individuals about:

• When staff might return to the workplace
• How staff will travel to and from work
• How health and safety is being reviewed and managed
• Any concerns that staff have
• Planned adjustments in the workplace

Overcoming resistance

Some staff may feel that they do not want to go back to work, or that they are unable to return yet and managers should explore this with them.

Consider practical options to address these concerns such as:

• Sharing information regarding risk assessments and how the workplace is ‘COVID-secure’
• Increase your communications with employees, use different ways to share information and keep getting feedback so that you know what employees are concerned about
• Gathering information from local transportation companies on the measures that they are taking and signposting this for your employees
• Arranging for some to work different hours temporarily to avoid peak time travel
• Keeping some on furlough if they are temporarily unable to work
• Offering extra car parking where possible so that people can avoid using public transport

Encouraging vs Mandating a Return to Work

Employees can’t assume that they will continued to be paid if they don’t go to work, but employers must be careful before disciplining or dismissing staff as they have the right to refuse to work to protect themselves from “serious and imminent” danger.

As an employer, if you have had staff working from home successfully over the last few months, you must assess if there is a genuine need for them to return to the workplace full-time, or at all, before refusing any requests for flexible working.

Employees have a duty to carry out any demands from their employer which are legal and reasonable, but there are two principal grounds on which employees can challenge an employer’s demand to return to the workplace:

Discrimination

• If an employee is disabled or at a higher risk due to a protected characteristic such as race, age, pregnancy or maternity, they could argue that demanding a return to work is discriminatory under the Equality Act
• There is a risk that disciplining employees for refusal to work due to childcare issues will result in a sex discrimination claim
• Employees with mental health issues may be especially anxious. If an employee’s mental condition constitutes a disability you should take extra care to accommodate requests

Health & Safety

• The Employment Rights Act protects employees who reasonably believe there is a serious and imminent risk of danger in returning to work, including travelling to and from work
• Employees can claim to have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if they reasonably believe there was a serious and imminent danger which led to their refusal to return to work
• The employee’s view is subjective, and the test is based on their perspective, so to avoid them having this view, employers should take all reasonable steps to make staff feel safe

Disciplinary & Dismissal

Prior to the pandemic, if an employee refused to attend work, this probably would have led to a disciplinary and potentially their dismissal. 

Whilst this remains an option, employers should proceed with caution, and all other alternatives should be exhausted first. Disciplinary action should be a last resort.

The employer should be proactive in speaking to the employee to determine their specific issues and concerns and then work with them to look at alternative options.

Employees have a legal duty to comply with their employers lawful and reasonable instructions, therefore long-term refusal to attend work is likely to be unreasonable.

Flatten the Fear

Genuine, open, and supportive management practices will go a long way in gaining mutual agreement from staff when it is time for them to return to the workplace.

The world of work will no longer look like it did before the pandemic, and this is a great opportunity to re-shape and modernise our workplaces and working practices.

Utilise the expertise within your HR department to make sure that your employee engagement and return to work plans are effective to protect your staff and to mitigate risk and exposure.

If you don’t have an internal HR team, Lotus HR can provide you with the expertise that you require on a one-off or an ongoing basis. Get in touch with us today.

About the author. Dr Yvonne Foster is director of Lotus HR. The company provides HR support to a wide selection of clients on either an adhoc basis or on a longer-term, interim arrangements.