As workplaces start to reopen in England following the coronavirus lockdown, it is highly likely that staff are going to be nervous when returning to work, with some even refusing to do so. Ben McCarthy, lead researcher and employment law writer at Croner-i, explores what employers should consider in this situation.

In normal circumstances, staff refusing to come into work could potentially be treated as misconduct, provided they have no valid reason for doing so. However, the upcoming post-lockdown weeks are set to be far from normal. For many, the prospect of returning to work with the coronavirus continuing to pose risks worldwide may be very unsettling, and cause them to act in ways they would otherwise not do. Therefore, whilst employers could consider disciplining staff who refuse to attend work, it is highly advisable they proceed carefully. Overall, how they should respond should depend on the reasons why an employee does not wish to return.

Concerns for personal safety

It would seem to be only natural that some members of staff will be concerned for their personal safety when at work, especially after a prolonged period of lockdown. Even staff who do return are likely to be nervous, especially as any new measures introduced in the workplace to reduce the spread of the virus are likely to be in place for some time. In situations where a member of staff does refuse to come in due to concerns about their safety, it is important to take their specific circumstances into consideration. For example, the coronavirus pandemic may have made a previous mental health condition, such as anxiety, harder for the employee to manage, and therefore make the prospect of returning seem all the more intimidating.

Alternatively, an employee may fall into the high-risk category and therefore feel concerned that the risks are higher for them than their colleagues if they were to be exposed to the virus.

Employees are protected by provisions of the Employment Rights Act 1996 for refusing to work, leaving work or proposing to leave work if their work poses an imminent and serious threat to their health. This only applies where the employee has a reasonable belief that their work poses the threat. In these circumstances, it is unlawful to dismiss the employee or to subject them to a detriment, eg withholding pay.

In an attempt to counter any “reasonable belief”, it is important that employers explain clearly what measures they have taken to protect employees’ safety and to make adjustments for employees where necessary.

Concerns when travelling into work

With images of packed-out London tube trains dominating the news lately, staff may feel more at risk from contracting the virus on their way into work. For their part, employers should consider the potential implications of a member of staff catching the virus on a bus and then potentially spreading it at work. On 10 May 2020, the Prime Minister outlined that commuting staff should now avoid using public transport, if possible, in order to avoid overcrowding potentially helping the virus to spread. He outlined that employers should encourage alternative methods of travel, such as cycling, walking or using a car. Such options might not be possible for everyone, but employers can assist staff by providing additional car parking spaces or bike storage facilities. They could also work to stagger shift start and finish times in order to avoid staff having to travel at peak times.

Childcare

Schools are set to remain closed for the foreseeable future, with a phased re-opening structure set to be implemented. Childminders are also currently working under restrictions. Both of these mean that employees asked to return to work may struggle to facilitate childcare. As we wait for schools to reopen, it is important for employers to bear this in mind and consider options to assist employees in this situation. The reality is that employees cannot return to work if all usual childcare arrangements are not available to them. Employers should speak with employees to find a mutually agreeable resolution.

It may be that amending their working hours, on a temporary basis, could help them to better manage their personal circumstances. It should be remembered that employees reserve the right to request flexible working arrangements if they have worked for a company for over 26 weeks and have not made a previous request in the last 12 months, and that the company needs to provide sound business reasons for their refusal.

Alternatively, annual leave, parental leave or another type of leave may be considered.

Conclusion

It is important to remember that employees may have genuine reasons for their concerns, or that responsibilities outside of the workplace make returning to work difficult in the short term. Although the lockdown is starting to be eased in England, this does not mean that the threat to safety no longer exists — it does. Employers should always remember that employee safety has to be the priority during the return to work period and for a long time afterwards.

Last reviewed 15 May 2020