Partner Sue Dowling, in our Employment Law team, explains how employers can manage situations whereby employees are reluctant or unable to return to the workplace amidst the ongoing pandemic.
While the UK is currently in a full lockdown and most non-essential workers are working from home wherever possible, employers still face a number of difficult challenges – for example, if not all work can be done remotely or where employees have medical concerns. We expect those challenges (and additional ones) to increase as the year goes on and the world starts to ‘open up’ again with the continued rollout of the COVID-19 vaccines.
Here we consider two scenarios in which employees may refuse to attend work in light of the pandemic, and the employer's options in terms of their absence and pay.
What if an employee is reluctant to work due to fears about COVID-19?
Where work can be performed from home, this may well resolve the issue. If not, employers should consider the current Government advice, listen to the specific concerns that the employee has and whether it might be discriminatory to take disciplinary action, or withhold pay in light of an employee's refusal. For example, does the individual fall into the category of disabled, pregnant or otherwise ‘high risk’? While all employees are under a general obligation to follow lawful and reasonable instructions given by their employer, there is also a duty on employers to protect their staff’s health and safety and act reasonably.
If the individual has a protected characteristic (under the Equality Act 2010), and/or is medically high risk, caution should be taken and specific medical advice sought (from the employee's GP or occupational health) to clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Risk assessments, tailored to the particular workplace, can also be very useful and may set some employees’ minds at rest.
Those with severe anxiety (which may amount to a disability if it is long term or likely to last for at least 12 months) may find their condition is exacerbated by travelling or being in public places. Acas guidance suggests that an employer could offer extra car parking where possible so that the employee can avoid using public transport, keep the employee on furlough if they are temporarily unable to work, or arrange for them to temporarily work different hours to avoid peak time travel. If the employee's anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and therefore entitled to sick pay (SSP or contractual) accordingly.
If there is no discrimination risk, and the Government advice is such that the employee could reasonably be asked to continue to attend work, then it is possible that the employee could be investigated for misconduct for their refusal to follow a reasonable management instruction. If the employee is not willing to attend work (without medical evidence supporting sickness absence), that absence would generally be unauthorised, meaning there would not be any entitlement to pay.
However, the context of the refusal to attend work should still be carefully considered before starting a disciplinary process. Where there is a legitimate concern impacting on an employee’s willingness to work, informal communication is the starting point to see if the situation can be managed and an acceptable compromised reached. While formal action can be commenced if necessary, bear in mind that certain sanctions related to the raising of health and safety concerns may amount to an unlawful detriment or even an ‘automatically unfair’ dismissal which would not require qualifying service.
As a temporary measure and if possible, the business should consider flexible working (in terms of hours/times as well as location), or allow staff to take holiday or unpaid leave, especially as by the time a disciplinary process is concluded, the COVID picture and level of risk may already have changed. If those are not realistic options, we recommend taking legal advice on the more formal actions in order to minimise risk.
What if an employee is concerned about a close relative being in a vulnerable category?
If homeworking, or redeployment into a role that is suitable for homeworking cannot be arranged, then the specific circumstances would need to be analysed to identify whether there is a discrimination or other risk if the employee is treated detrimentally as a result of their desire to remain away from the workplace (for example through a sanction under a disciplinary process).
The law on associative discrimination may protect a relative against direct discrimination, harassment and victimisation so reasonable steps should be taken to ensure that the employee does not suffer repercussions because of their association with someone who has a protected characteristic and falls within one of the vulnerable groups. An employer is not however required to eliminate any risk. The test is whether an employee formed a reasonable belief in danger to health. Good communication with staff regarding measures taken by the employer to minimise the risk will be important.
Currently, in the light of the third national lockdown since 4 January 2021, the clinically extremely vulnerable are strongly advised to shield and not attend their workplace. Members of a household who are not clinically extremely vulnerable should continue to attend work if they are unable to work from home but employers should react sensitively to genuine concerns of close relatives from a vulnerable category. In many cases, it would be sensible to allow a period of unpaid leave without any disciplinary repercussions as a minimum.
Ultimately, in all situations, it will be a case of carefully balancing interests. Employers who operate ‘knee jerk’ reactions (such as moving too quickly to a disciplinary process or unpaid leave, for example), before exploring other options first, are likely to leave themselves more exposed to the risk of claims. Communication and flexibility are important tools for employers to utilise during a pandemic in order to maintain productive employee relations. If those initial routes are taken, the problem may either be resolved or the business will at least be in a far better position to defend its position.
For further information or legal advice, please contact firstname.lastname@example.org or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.