Refusing to return to work

4 September 2020

While many employees remain working from home, this may not be viable or efficient in the longer term for a significant proportion of employees. The lifting of restrictions and the safety measures many employers have put in place to allow employees to safely return to the workplace are still not enough and employers are finding some employees are reluctant (legitimately or not) to return. 
This article explores some of the protections in place for employees who refuse to return to work for reasons related to COVID-19, and also provides an update on recent employment related coronavirus regulations. 
Reluctant employees
For the most part, employees cannot refuse to attend the workplace just because they are worried about COVID-19. Employers may be able to discipline or, in extreme cases, dismiss such employees where there are no reasonable grounds for their refusal. However, employers should be aware that a one-size fits all approach will not work and there are significant risks in such an approach.
Reasonable belief in serious and imminent danger 
Employees may be protected from dismissal if they reasonably believe that they are in serious and imminent danger in the workplace or carrying out their work, which they cannot be reasonably expected to avert. Employees with such a belief are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists. Any dismissal in these circumstances will be automatically unfair. 
A protection from detriment (for example, treating any absence as unpaid leave or insisting the employee takes their holiday) is also given to employees in these circumstances.
The key feature of these protections is that the danger itself need not actually exist. Rather, the relevant consideration is whether the employee reasonably believed that attending or remaining at work, or carrying out their work would be dangerous. Employers should not only ensure that 'Covid-secure' measures have been introduced, but should ensure that employees are informed of these measures. Employers should be open to any proposals employees make to further enhance the protection and, if need be, implement any such changes. The objective being to reduce the chances of an employee successfully claiming that they 'reasonably' believed they were in danger by returning to work.   
While the published guidance and safety measures to be put in place are clear in regard to employees attending the workplace, the position with regard to their commute to work on public transport is less clear, and may depend on factors such as whether there are other safer options available to reduce the dangers presented by commuting. For example, is it possible to avoid the rush hours in busy cities, to provide private transport, or to temporarily change the workplace to a location that does not require the individual to travel a great distance via public transport? These are all factors that need to be considered before action is taken against an employee who refuses to attend the workplace on account of the dangers presented by their daily commute.  
If an employee  has raised concerns about health and safety in the workplace, dismissing that employee or subjecting them to any detriment could result in not only an automatic unfair dismissal claim but substantial compensation being awarded to the employee, who could be considered a 'whistleblower'. The employee in such circumstances does not need to have two years continuous employment and this applies  even if the employee's belief of serious and imminent danger was not reasonable. As long as the employee subjectively believes that the relevant failure has occurred, or is likely to occur, and their belief is, in the employment tribunal's view, objectively reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.  
While the law on whether a qualifying disclosure has been made for whistleblowing purposes is complex and there are hurdles for the employee to get over in order to be successful, the key point is that no employer should ignore health and safety concerns raised by an employee, or indeed any person who falls into the category of a worker. 
Constructive dismissal
If an employee is not dismissed for a reasonable refusal to return to work, but is merely subjected to some form of detriment (for example, their employer treats their absence as holiday and the employee does not agree with this), their responsibilities are removed or they are transferred to another job, this may be sufficient for an employee to resign and claim constructive dismissal. For the reasons outlined above, this could also be automatically unfair as well as giving rise to an ordinary unfair dismissal claim. 
Health issues
One size does not fit all and there may be cases where employees have specific health issues that may need to be taken into account. In this respect, employers should take particular care when dealing with vulnerable and extremely vulnerable employees who refuse to attend the workplace. A vulnerable employee could be a person with an underlying health condition, such as chronic asthma, lung disease or an impaired immune system on account of medical treatment. This may not just be the employee but a member of their family living in the same household. 
On 17 July 2020, the Government announced that from 1 August 2020, employers would have more discretion in bringing their employees back to the workplace, provided that the workplace is compliant with the health and safety guidance.  
In all employment situations discretion has to be exercised fairly and be reasonable. Therefore, employers should be cautious when exercising their discretion in relation to vulnerable and extremely vulnerable employees. Just because the workplace is safe for non-vulnerable employees, this will not necessarily be sufficient to protect more vulnerable individuals or members of their family living in the same household who fall into this category. Aside from the potential claims set out above, if the workplace is not safe this may be a breach of the employer's duty of care for the safety of their employees. The employer could well be liable under the common law if the employee catches coronavirus from the workplace resulting in a personal injury claim. While such a claim might well be covered under their employers liability insurance, it could result in higher premiums or a refusal to indemnify if the employer was found to have ignored steps to remove or reduce the danger. In an extreme case, it could even result in a prosecution  under the health and safety legislation.
If the employee in question is classed as disabled, an employer may also face a discrimination claim. It may also be open to an employee who was dismissed or suffered a detriment to pursue an unlawful associated disability discrimination claim if, for example, they refused to come to work because a disabled family member was an extremely vulnerable person.  
The health status of vulnerable, extremely vulnerable and disabled employees or close member of their family living with them may also make it easier from them to claim they reasonably believed they were in serious and imminent danger and refused to attend the workplace.
Ultimately, employee's health issues should form part of the employers' risk assessment, and given the risks outlined above we would recommend that employer's seek legal advice before taking disciplinary action against any employee, vulnerable or otherwise, as a result of their refusal to return to work because of coronavirus.  
Other updates
Increased self-isolation period and amendments to statutory sick pay
On 31 July 2020, the Government updated its guidance so that individuals who test positive for coronavirus, or who display symptoms, should self-isolate for a period of ten days (raised from the previous seven days). The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations have also been updated so that these individuals are entitled to statutory sick pay for the full period of their self-isolation. Employers are still able to reclaim up to 2 weeks' SSP for each employee where they are unable to work due to coronavirus. 
New definition of a week's pay
The Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 came into force on 31 July 2020. The new regulations are aimed at preventing employers from disadvantaging furloughed employees by paying them certain statutory entitlements based on their furlough pay, rather than their normal pay. 
Under the new regulations, when an employer is calculating a week's pay for the purpose of statutory entitlements for a furloughed employee (including redundancy and notice pay, amongst others) they must base it on the employee's pay before they were furloughed.  However, there are various caveats in the regulations, and we recommend that employers seek legal advice if issues arise around the calculation of statutory entitlements for those who are, or have been, furloughed.

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