What if an employee refuses to return to work because of coronavirus-related concerns?
The Government’s Coronavirus Job Retention (Furlough) Scheme has been
extended until the end of October and will continue in its current form
until 31 July.
From 1 August, however, the Chancellor, Rishi Sunak, has said that the
Government will ask companies to "start sharing" the cost of the scheme.
The scheme will also operate with greater flexibility by, for instance,
enabling employers to bring furloughed employees back on a part time basis.
Full details of how the scheme will work from August onwards are expected
The gradual lifting of the UK’s lockdown measures will bring challenges for
employers, including changes to job roles or terms and conditions of
employment, but the most immediate concern for employers is likely to be
dealing with employees who do not want to come back to work because they
are worried about coronavirus or feel that the employer’s adaptations to
the workplace do not go far enough to protect their health and safety.
Employers have a legal obligation to take all reasonably practicable steps
to ensure the health safety and welfare of all their workers. All
return-to-work plans and COVID-19 risk assessments must take account of
this and put safeguards in place that take account of the specific
circumstances that apply in the workplace.
Employees are required to obey an employer’s ‘reasonable instructions’ and
this is likely to include the employee returning to work if the work cannot
be done from home and the employer has put in place safe working practices
in line with current government guidance.
However, under Section 44 of the Employment Rights Act 1996, employees are
protected against detriment and dismissal when they have a reasonable
belief of ‘serious or imminent danger’ to their health and others around
them. In these circumstances, they can refuse to return to their workplace
or carry out certain tasks. Given the potentially deadly nature of
coronavirus, an employee could certainly claim that there are actual
circumstances of danger, but the employee must also reasonably believe that
there is a ‘serious and imminent’ danger. The employer’s COVID19-specific
risk assessments will play a crucial role here in showing that the employer
has taken a reasonable approach to mitigating risk.
It is uncertain how refusals to work under Section 44 will be treated in
future employment tribunals, but employers need to proceed with care in
order to avoid potential claims, seeking to consult and compromise rather
than rushing to discipline an employee for unauthorised absence. Particular
care should be taken when consulting with pregnant workers and those with
underlying health conditions.
More content will be added to the
Covid-19 and Employment
Documents Group over the next few weeks, to help employers manage the
transition back to work.