16 June 2020

As the economy continues to suffer from the effects of the pandemic and lockdown, some steps are now being taken in the direction of a resumption of some sort of normality. Over the next few weeks, it is likely that business activity will open up significantly, with construction sites, offices, shops, and eventually even restaurants and pubs, beginning to trade.

This brings with it, however, a number of further difficult employment issues for employers, and in this note, we consider one particularly challenging issue which many of our clients are already raising with us.

Understandably, many employees may be concerned about the health risks posed by returning to work while the coronavirus is still circulating in the community. That concern may relate to the workplace itself, contact with colleagues or customers/members of the public, or even to the risks posed by travelling to work by public transport. What can an employer do if the employee refuses to come back to work?

An employer can of course issue an instruction that the employee attends work, and if they do not do so, then options include withholding salary or disciplinary action. Before taking any such steps, however, an employer must think very carefully.

The employer certainly needs to have carried out a proper assessment of the risk posed to employees as a result of the pandemic and taken reasonable steps to minimise these risks. These steps should be explained to the workforce.

Where an employee can reasonably work from home, and that suits the employer, that may solve the issue. Otherwise, an employer needs to carefully consider all the relevant circumstances and to fully understand the reasons for the employee’s concern, in the context of the current health advice, before deciding what action to take.

An employer must act reasonably and take concerns seriously, to avoid claims for constructive or otherwise unfair dismissal, or for discrimination.

Remember that it is automatically unfair (no length of service required) to dismiss employees who leave (or don’t attend) their place of work due to a reasonable belief that they would be placed in serious and imminent danger that cannot be averted. The danger need not actually exist – it is a question of reasonable belief. Similarly, an employee who refuses to work in such a case cannot be subjected to any detriment by the employer, and that could mean that an employer is not allowed to withhold pay.

The central issue clearly will be whether the belief in danger is reasonable, and that needs careful consideration in order to assess the risks of employment tribunal claims being brought (and succeeding). It will be vitally important for the employer to be able to show they have done all they can to reduce the risks and explained that to the employee. 

Other considerations will arise if the employee has other reasons for not working – for example, if they have no childcare options available and the schools are closed (or only partly open). Again the employer needs to act reasonably. The UK government recently stated that it would expect employers to view a lack of childcare as a reasonable excuse for employees not coming to work. Other issues may arise if the employee has a household member who is shielding and does not want to work due to the risk of bringing an infection home.

There are inevitably going to be many difficult situations for employers to deal with, and while their priority will be to get staff back to work, and start trading as fully as possible in an attempt to recover from the financial impact of lockdown, it is important not to lose sight of your obligations as an employer. You need to recognise the different scenarios where employees may reasonably have concerns or hurdles in terms of returning to work and deal with these appropriately. Expert legal advice should be sought and BTO’s team of expert employment lawyers stands ready to assist. Assistance with health and safety issues can also be provided by our specialist health and safety team.

This update contains general information only and does not constitute legal or other professional advice.

Employment law

Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271