Returning to work - key considerations for employers

Employers and employees alike will be well aware that on 19 July 2021 the government lifted its instruction that people should work from home.

If you are an employer, you might now be considering how best to formulate your return to work strategy or even putting it into action. However far along in this process you are, it is inevitable that you will be questioning the safest strategy for your business, employees and customers.

Two of the most frequently asked questions raised by both employees and employers are:

• Can an employee refuse to return to the workplace?
• Can an employer enforce a testing/vaccination policy?

This article will address how employers can best interpret the current government guidance (in conjunction with their statutory duties) and the takeaway points from recent Employment Tribunal decisions in this area.

An employer’s duties

Under the Health and Safety at Work etc Act 1974 employers have a statutory duty to provide a safe place of work and are obliged to take all “reasonably practicable” steps to ensure the safety of their workforce. Employers will also owe a duty of care to third parties, such as those visiting their premises.

In order to fulfil these duties in the context of the pandemic, employers should carry out thorough risk assessments to identify and address any risks and generally take steps to keep the workplace safe (such as the continued use of hand sanitisers, distancing measures and regular cleaning). They should also continue to follow any government guidance (as updated from time to time).

By communicating to employees that appropriate measures have been taken to create a COVID-secure workplace (and engaging with them), cautious employees are more likely to feel comfortable about their return.

An employee who refuses to return

An employee’s implied duties include “being ready and willing to work” and accepting “reasonable instructions”. If an employer has created a COVID-secure workplace, they can reasonably expect their employees to return; indeed, employers who have conducted a thorough risk assessment and put appropriate safeguards in place will be better placed to insist that staff return.

We would suggest in any event that employers review and update their attendance and absence policies so that employees know what is expected of them and the consequences of non-compliance.

Dealing with employees who refuse to return is a tricky problem to grapple with. Refusals should be dealt with on a case-by-case basis and in particular, employers should communicate with any employee who is refusing to return to understand the reasons for their refusal. If, for example, it is due to an underlying illness or a medical condition of a close relative, insisting they return (or disciplining them if they do not) could give rise to a claim.

Where an employer believes it is appropriate for them to insist that an employee returns to work and the employee continues to resist, it would be prudent for the employer to consider all options (such as unpaid leave or flexible working arrangements) in the first instance. If alternative options are not acceptable to the employee or are not possible for the employer and in the absence of any mitigating circumstances, a refusal to co-operate with the return to work strategy could be dealt with under the company’s disciplinary procedures.

However, the decision to enter into a disciplinary procedure should not be taken lightly and an employer should always be aware of any additional legal protection which may be afforded to the employee, such as those associated with a whistleblowing disclosure.

Where an employee is viewed as disabled in the context of the Equality Act 2010 an employer is further obligated to make reasonable adjustments to enable the employee to fulfil their duties despite their disability. Failure to do so could result in a discrimination and/or a constructive unfair dismissal claim against the employer.

Testing and vaccinations

Employers may ask their staff to be tested for COVID-19 on the basis they are considering the health and safety of other employees, customers and so on. If an employee unreasonably refuses to take a test, their employer could take disciplinary action.

Vaccinations are however, a different matter and it will not generally be possible to insist that staff receive a COVID-19 vaccination, especially if there are health or religious reasons behind their refusal. There are some exceptions to this but typically these will apply in the health care sector only.

If an employer collects health data (such as test results and whether somebody has been vaccinated) they should remember that such data is afforded enhanced protection under data protection laws. Employers should ensure that their data privacy notice confirms that such data is collected and explains how it will be used.

Employment Tribunal outcomes so far

Recent decisions delivered by the Employment Tribunal have made it clear that every case is fact-sensitive and instances of an employee’s refusal to return to the workplace cannot necessarily all be handled in the same way.

Pivotal facts considered by the Employment Tribunal in finding for the employer in Rodgers v Leeds Laser Cutting included the employee’s conduct and the efforts taken by him to self-isolate and protect himself against the transmission and threat of COVID-19 (in addition to the measures put in place by the employer to create a safe workplace) when determining whether he had a genuine belief that returning to work posed health and safety concerns. However, if he had shown a genuine belief, query whether the outcome would have been different. In Accattatis v Fortuna Group (London) Ltd the Employment Tribunal’s decision (again finding for the employer) was guided by the employee’s unwillingness to accept his employer’s offer of unpaid leave in order to avoid the workplace.

A common theme in both cases (identified by the Employment Tribunal) was the lengths taken by the parties to mitigate the health and safety risks posed by COVID-19.

Nina is a Legal Executive in our Employment team.

Disclaimer

This note reflects our opinion and views as of 29 July 2021 and is a general summary of the legal position in England and Wales. It does not constitute legal advice.