Employee refuses to return to work

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 shortly.

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.