With most children back to school this week, many employers have started planning a safe return to the workplace. With the threat of the virus still very present and with some employees having worked at home for the last 18 months, it is likely some employees will be reluctant to return to the office.
So, with this in mind, here’s our quick guide on how to manage a few of the scenarios.
An employee refusing to return to work due to safety concerns
Naturally, safety-related concerns are going to be among the most common reasons for refusal to return to the office so lets look at the legal aspect of this.
Section 44 of the Employment Rights Act protects employees against penalty or detriment if they act on the belief that their workplace presented a serious and imminent danger but, the protection will only apply if:
- The employee genuinely believes that they are in serious and imminent danger; and
- The belief is considered to be “reasonable”.
If both of the above are true then taking any action against the employee such as withholding pay or dismissing them, could increase your risk of a tribunal claim which may also include damages for loss of earnings and injury to feelings.
In order to minimise the risk of such a scenario arising, the following is suggested:
- Ensure you have an up-to-date risk assessment which pays specific attention to employees with medical conditions or other risk characteristics.
- Share your risk assessment with everyone and include what steps you have taken now, and in the future.
- If an employee raises a concern, approach this sensitively, and avoid reprimanding them for coming forward.
- Answer any concerns raised with objective evidence to support the belief your workplace is safe and implement any further suggestions that could be taken, where possible.
- If the employee continues to believe the workplace is unsafe, try to establish why they still hold that view.
- If the employee is still unwilling, call us to get some advice on your options.
What about clinically extremely vulnerable employees?
It is vital to recognise the difference between being sceptical about returning to the office and physically being unable to return and you should be factoring clinically extremely vulnerable (CEV) employees into your planning, as they are very likely to be classed as disabled.
As a result of being classed as disabled, you are required to make reasonable adjustments to the workplace to accommodate their condition. Although the definition of ‘reasonable’ will depend on the employee’s condition and the nature of your workplace, one option would be to allow them to continue working from home, if this has previously been successful, even if others are returning to the office. You would then be able to consider the adjustment to home working as a ‘reasonable’.
What about those who wish to remain being a remote worker?
Finally, with many employees now happy and comfortable working remotely, and a strong consensus that hybrid working is here to stay, Companies looking to move back to an office-based set-up may encounter considerable push-back.
With the end of the Government requirement ‘to work from home if you can’ employers can ask staff to return to their normal workplace but should be asking, if that is entirely necessary on a full time basis. The pandemic has shown that many roles can be undertaken remotely and so, that opens up a world moving towards flexible and hybrid models.
If you haven’t looked into flexible working requests yet then our newsletter from May 2021 gives a few pointers. Briefly, though, there is legislation setting out how to deal with a flexible working request and you can always agree this on a trial basis, if you are unsure whether it will work or not.
The big risk is indirect discrimination, so be prepared to fully justify any refusal particularly to a female employee.
If you have another scenario you would like some advice about then feel free to drop me an email.
Nicki Kempston – In2HR – https://www.in2hr.co.uk/
