Last reviewed 15 July 2021
Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores how employers can approach a situation where their staff do not want to return to work.
Although a change in homeworking guidance only applies in England for now, there may be reasons why employers across Great Britain have to bring staff back to work. Employers in England will have the freedom to end homeworking measures, gradually, from 19 July 2021 and employers across Great Britain, due to relaxations in coronavirus restrictions, will be able to re-open their businesses. However, if employees are reluctant to return, what options do employers have?
Employee safety must be the priority during the initial return to work period. Where it is required that they return to work, employees will need to be reassured that the necessary measures have been put into place to ensure their safety. Requiring employees to work in an environment that puts their health/safety at risk could breach an employer’s duty of care.
Some employees may be cautious about returning to the workplace for fear that it puts them at a greater risk of contracting coronavirus. This may be fuelled by news reports from health officials warning of the risks of easing restrictions too early, especially if they are yet to receive both doses of the vaccine.
However, it is up to employers to not only reassure their staff but to also listen to their concerns and factor in the possibility that their fears may not be unreasonable, given the current climate. Some examples of how employers can help mitigate the likelihood of the virus spreading in the workplace are: reviewing current risk assessments (or carrying one out if the business is opening for the first time since the start of the pandemic), staggering shift patterns where applicable and improving ventilation.
Forcing staff to return
Employers across Great Britain may wish to explore the use of force when bringing reluctant staff back to work — not physical of course! However, they should be careful about doing this as it could lead to a decline in staff retention and/or morale, or even cases of automatic unfair dismissal if health and safety issues are raised and the employer is found to have been acting unlawfully.
Rather than forcing employees to return (eg stating that an employee will lose their job if they don’t return), it is important to first determine why the employee is reluctant. Once this has been established, the right kind of conversation can then be had with them — keeping their specific circumstances in mind, as well as government guidance and the needs of the business.
It may also be helpful to prioritise returning reluctant employees to work after they have had their second dose of the Covid-19 vaccine — if this is something they wish to take up.
Can I force furloughed staff to return to work?
Some employers will not have to look too far to find an answer. That is if they have expressly set out, in furlough agreements, when their furloughed employees will be expected to return to work as well as if the feasibility of their return will be reviewed, and when. This is the easiest way to determine, at first instance, the steps that can be taken if furloughed employees refuse to return to work.
If the return date being proposed had not been previously agreed with the employee, then forcing them to return could lead to a decline in staff retention or morale. Employers should therefore consult with individuals on furlough to address when the company proposes they return, giving ample notice (ranging from a week to a day depending on the needs of the business) and discussing any issues the employee may have about returning.
In all, employers may enforce the return dates stipulated in furlough agreements but should first find out the reason behind an employee’s reluctance to return to work before doing so and consider alternative options where possible. A similar approach should be adopted where furlough agreements are unclear about when an employee is expected to return to work.
Employers will need to factor in the possibility that a sudden rise in infection rates could threaten any plans they have to get their businesses back to some form of normality. Exit strategies are an important way for employers to adapt if stringent coronavirus restrictions once more become a necessity in the near future; they will allow employers to efficiently and rapidly react to any such announcements from the respective UK Governments.
Employers may put the following exit strategies in place where applicable:
home working measures could be retained/introduced for efficient implementation/re-implementation
transferring operations online for the foreseeable future, if possible — including virtual training and/or online client meetings
plan to agree furlough terms again with eligible employees until the furlough scheme ends at the end of September 2021
consider alternative options for employees who cannot be furloughed for any reason.
It is still yet to be seen how the next few months will play out. However, it is advisable to follow the measures laid out in government guidelines, consult with reluctant employees, and apply exit strategies. Failure to do so could lead to problems down the line. Employers can also take other possible measures necessary to suit their specific business needs.
Employers may believe that dismissal, though unfavourable, is a reasonable decision. In actuality, taking this route may be unfair and the best solution will be to communicate with employees as much as possible to ascertain how best to move forward