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Returning to the Workplace: What can an Employer Do if Staff Refuse to Return?

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Employment lawyer and Partner at Darwin Gray LLP, Damian Phillips, examines whether employees can rely on health and safety fears about Covid-19 to justify continue staying away from the workplace.

As many employers start to plan to bring their staff back into workplaces over the coming months, some thorny employment law questions may arise.

These issues also arose during the first lockdown in March 2020, when employers were first faced with uncertainty over whether health and safety rights prevented them from disciplining employees who stopped coming into work even though they could not work from home. The disputes in some of these cases have now begun to be heard in the Employment Tribunals.

In Rodgers v Leeds Laser Cutting, one of the first judgments released on the effect of Covid-19 on unfair dismissals, a Tribunal has found that it was fair for an employee who refused to attend the workplace during the first Covid-19 lockdown to be dismissed as a result.

The claimant in that case informed his employer in March 2020 that he would not be returning to work until the lockdown eased as he was concerned about passing on the infection to his family, including a child with sickle cell disease. He was later dismissed as the employer did not have work which he could do from home and needed him in the workplace.

His “automatic unfair dismissal” claim was brought under employment legislation which says that an employee who stays away from the workplace because they believe there are “circumstances of serious and imminent danger” must not be dismissed or punished as a result.

The Employment Tribunal found that general concerns about Covid-19 did not qualify as “serious and imminent danger” in this case, particularly as the employer had already put safety measures in place to protect against the disease. The Tribunal commented that workers cannot rely on the health and safety legislation to refuse to work in any circumstances simply by virtue of the pandemic itself.

This is a welcome decision for employers dealing with disputes with staff over whether they were or are required to attend work during the pandemic. However, as a first instance decision, the judgment does not yet set a precedent which other Employment Tribunals are bound to follow and each case must be decided on its own facts.

In addition, employers asking staff to return to the workplace in the next few months will be in a different situation to the employer in the Rodgers case, as the number of vaccinated adults rises and the number of Covid infections in the UK is currently much lower than they were during the peaks of the pandemic in 2020 and early 2021.

A key question will be whether employers have taken reasonable steps to protect against the danger of Covid-19 in the workplace. This will continue to be the case as more employers begin to ask staff to return to work in the coming months.

We would therefore recommend that employers:

  • Carry out a Covid-19 risk assessment in relation to the workplace, as this is required by law, and record it in writing;
  • Implement adequate health and safety measures which reflect the current Government guidance and any particular risks identified by your risk assessment;
  • Update these measures as appropriate and make reasonable attempts to lower the risk of infection; and
  • Ensure all employees are aware of the safety measures in place, and consult with them on your risk assessment and any concerns they may have.