NAVIGATING CHANGE COVID-19 Employees who can’t (or won’t) return to work
The COVID-19 pandemic has meant drastic changes for the UK’s workplaces, including three lockdowns, many social restrictions and government advice that people should only leave home to attend work if they “cannot reasonably work from home”. However, on Monday 5 July, Prime Minister Boris Johnson held a press conference to set out what life will look like after the fourth and final step out of lockdown – planned to go ahead on 19 July (although this will be officially confirmed on 12 July).
The PM confirmed plans to move away from legal restrictions from 19 July, to allow people to make
their own informed decisions about how to manage the virus. These plans include (but aren’t limited to):
- removing all legal limits on people gathering both indoors and outdoors
- allowing all businesses to reopen, including nightclubs
- removing the ‘1 metre plus’ rule on social distancing
- removing the legal obligation to wear a face covering
- the guidance to work from home will end from 19 July and employers can therefore start to plan a safe return to the workplace
As this return to work begins, you might find some of your employees might be resistant to the idea
of returning to the workplace. So, it’s vital to know where you stand as an employer if an employee is refusing to return. Citation’s HR & Employment Law experts have set out below some important points to consider when an employer is looking to require an employee back to the workplace.
First step, risk assess!
As a first step, you should carry out risk assessments for the workplace/job roles/individuals (where
appropriate, e.g. because the employee is pregnant or clinically vulnerable). You should then put into place all reasonable and necessary measures and confirm to the employees that the workplace has passed this COVID risk assessment. This will help reassure them that the workplace is safe. It is important to share your risk assessment and details of the measures you have implemented with them.
Remember… it’s your responsibility as an employer to make sure that your workplace is COVID compliant and stays that way. This will play a huge role in giving your people increased confidence that they’re returning to as safe an environment as possible. Plus, you could be liable for a fine of up to £10,000 if your workplace is found to be in breach of COVID-secure rules.
The key to approaching returning an employee to the workplace is communication – understanding
their concerns and discussing the needs of the business whilst offering support where you
can. Last summer the government called for employers to consult closely with their employees
about returning to work and this will be equally important as we emerge from the current
If, despite the reassurances, you find the employee resisting the request to return to work, the next
stage would be to have a conversation and find out exactly why they are opposing the request.
What if an employee prefers to work from home?
It may be that an employee simply prefers to work from home. They could even submit a formal flexible working request to work from home (as long as they have over six months’ service). Therefore, it’s worth clearly setting out from the beginning why you want them to return to the workplace so that they understand the business reasons for this. It may be because you think they can do their work more efficiently or effectively there. It’s worth considering the following:
- Is this because of the limitations in doing the particular role at home or issues with their abilities/efforts?
- If it’s about the role, are there any reasonable measures or amendments you could make so that they can do their job effectively at home?
- If you feel it is because of the individual, have you addressed this with them
It’s important to make sure you communicate clearly to the employee why you’re refusing the request, so they fully understand the business reasoning behind the refusal. If they then put in a formal flexible working request, you should make sure you deal with this properly using the correct procedures.
What if my employees are nervous about the removal of social distancing and face covering obligations?
Probably the most controversial announcement the PM made in his press briefing was the news that from 19 July it will be a matter of personal choice, not a legal requirement, to wear face coverings.
For many, this will have been welcome news but for others, this will give rise to genuine concerns about their Health & Safety, especially given that it coincides with the end of social distancing rules. It also comes at a time when millions of workers are being urged to return to the office having spent much of the last 15 months working from home.
There are a number of reasons why, as an employer, you need to tread carefully when it comes to
introducing and enforcing policies to either enforce the wearing of face coverings at work or, alternatively, banning the practice.
- Enforcing any blanket policy without taking into account the specific needs of individuals can, at best, run the risk of disengaging employees and at worst, lead to allegations of unfairness and discrimination.
- You may be tempted to impose different rules on those who have been vaccinated and those who haven’t. It’s essential to remember that vaccination remains entirely voluntary at the moment and, as an employer, you owe the same Health & Safety duties to all your employees, regardless of their personal choice when it comes to vaccination. For some employees vaccination may not be possible because of medical reasons, which may leave them either clinically vulnerable or extremely vulnerable. Employers should be particularly mindful of COVID-secure measures (such as continuing to wear face coverings) which may be identified as a necessary control in their individual risk assessment.
- Be careful not to single out those who haven’t been vaccinated for different treatment -particularly where the reason they haven’t been vaccinated is disability related, as this would be discriminatory. A rule that every employee who’s not been vaccinated must wear a face covering whereas others do not would bring risks for you as an employer, especially given that the rationale for face coverings has always been primarily to protect others through minimising transmission rather than providing protection from infection.
- It’s important for employers to decide whether they’re going to leave this as a matter of individual choice or impose specific rules. If you choose to impose specific rules, your policy must be sufficiently flexible to take into account individual needs and managers must exercise any discretion both fairly and consistently. If leaving it down to personal choice, you should recognise the potential for conflict among colleagues on what is often a strongly held and personal opinion – particularly so where colleagues have just returned to the office and mental health pressures on the workforce are enormous.A clearly communicated policy, which is implemented empathetically and flexibly to take into account individual needs, and which makes it clear that colleagues are to be treated with courtesy and respect at all times, will be key to getting this right.
What if an employee has been shielding and is nervous to return?
As of 1 April, the government officially paused shielding, although clinically extremely vulnerable people are advised to continue to take extra precautions to protect themselves. Before asking a (previously) shielding employee to return to work, you should first carry out an individual risk assessment to make sure it’s safe for them to return. This is also necessary to help reassure them that their safety is a top priority. If it isn’t assessed as safe at this stage to ask them to return to the workplace, then you could potentially keep them on furlough or ask them to continue working from home.
If you do assess the workplace as safe, then you should speak to the employee and demonstrate to them that you have introduced the necessary measures to keep them safe . You should ask them to outline exactly what they feel nervous about and how you have addressed these areas. If the workplace is safe and you do need them to return, then you may need to take formal steps to
require them back to work. However, this would need delicate handling and individual advice about the particular case.
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