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:
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:
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:
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
Health & Safety
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.
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