Encouraging staff back to the workplace following lockdown - how far can an employer push it?

25 Feb 2021

It looks like we are coming towards the end of the third lockdown, with more workplaces being able to open. One question which will inevitably arise is the extent to which an employer can require an employee to attend at the workplace, where they are reluctant to do so due to a Covid related reason. In this situation, what can an employer do if the employee refuses?

The answer is far from simple. 

Much will depend on the employee’s reasons for being unwilling to attend. Where the refusal is based on health concerns an employer will need to tread carefully.   

Dismissal or the disciplining of staff (including the withholding of pay) where a refusal to attend work is based on health and safety concerns, carries a risk of a successful Tribunal claim under s100 (dismissal) and s44 (detriment) Employment Rights Act. Those provisions protect employees from dismissal or detriment on the grounds of a refusal to attend at work, where the employee has a reasonable belief that it would put them in serious and imminent danger, which they cannot reasonably be expected to avert.

The key issue is whether the employee’s belief about the level of danger is in fact reasonable. There are two things that may significantly assist an employer in showing that it is not. The first is the vaccination programme. If, as more data emerges, we have a situation where infection rates drop to the levels they were last summer, it will be difficult for many employees to show that their fears of serious and imminent danger are reasonable. The second is the steps that an employer implements to make sure the workplace is as safe as it can possibly be and, just as importantly, the effective communication of those steps to all staff. 

The employee's own health may be very relevant. In some circumstances, an employee with a suppressed immune system may be put in serious and imminent danger, where those without such health conditions are not. Certainly there is an increased risk of such a claim where an employee is in a vulnerable category.

The protection applies not only where an employee believes there is serious and imminent danger to their own health, but also where they believe that such danger exists in relation to others. An example of this might be where the employee is concerned about the risk of bringing Covid into their own household and infecting someone else (whether or not that person is vulnerable and/or disabled). 

Particular care should be taken where an employee is disabled, in a vulnerable category or has a relative in either of those positions, or where the employee has some other protected characteristic. That is especially so where the employee is unwilling to attend at work or be vaccinated, perhaps because of health issues, pregnancy, or on the basis of their cultural or religious beliefs. 

With disabled employees, any requirement (applied to all staff) to continue to attend work in a pandemic could be indirectly discriminatory against those staff whose disability makes it more difficult or risky to attend. The important thing here is that an employer can justify its requirement that employees attend the workplace. This will  involve a focus on the business or operational reasons for the request. An employer will also need to consider what reasonable adjustments it should make to facilitate a disabled employee's request to work from home in a pandemic.  

Where objection is based on other (non health related) concerns such as child care, the risk in relation to employment law liabilities is much lower. The primary risk is an indirect sex discrimination claim from female staff. Again the important thing is that an  employer can  justify its requirement that employees attend at the workplace. 
So, for now, employers should continue to tread carefully, focussing on the individual circumstances of any situation.

If you have an enquiry or would like further information in relation to the above article, please get in touch with Simon Bellm or your usual point of contact within our employment team.

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