Can I insist staff return to work?
You will know by now that the Government’s official advice to employees about returning to work changed from the start of this month.
Previously, it had been the Government’s position that everyone who could work from home should do so to help prevent the spread of the coronavirus.
But from August 1, Boris Johnson says that employers can have more discretion in the matter – meaning that homeworking could continue, or workplaces could be made safe by following the Government’s guidelines and staff could be allowed back.
This slow return to the workplace will inevitably bring with it some anxiety on the part of employees. How will they know their workplace is safe? What if they live with someone who is shielding? What if they have to use public transport to get to work?
All these issues – and a good deal more – might lead people to refuse to return to their office, factory, shop or other workplace. In these circumstances, what should an employer do?
The first step is to consider just how important it is for any particular individual to return to the workplace. If they can work from home without detriment then it is at least worth considering, particularly whilst social distancing measures remain in place. If not, then it is worth considering retaining them on furlough whilst the company works with them to consider and address their concerns.
We have looked at the safety measures companies need to put in place in previous blogs – but always check that everything possible has been done to ensure your staff’s wellbeing. You have a duty of care to identify and manage risks and should not allow staff to feel they are being ‘bounced’ back into work without the necessary consultation and implementation of health and safety measures.
To this end, it is vital that there is a clear dialogue between employers and staff over the issues which are causing concern, such as commuting by public transport or the safety of relatives who are shielding. Solutions such as different working times, shift patterns and worker ‘bubbles’ can all then be explored.
It is also important to ensure that all your staff know just what has been done to make their workplace Covid secure. In some cases, this will be relatively straightforward, but in other it will be altogether more complicated. Try to pass on as much information as possible so that employees are making their own decisions from a clear position.
One common concern will be the lack of childcare available due to the impact of the pandemic. In these cases, try to explore alternative solutions such as changing the employee’s role so that they can still work from home or extending their furlough until the situation changes.
Similarly, if a member of staff has health concerns it is essential to consider what other options are available and, if necessary, keep them on furlough a little longer whilst you address their specific situation
The same is true of public transport. Just because some members of staff are happy to use it does not mean you should insist that all your employees must do so. Your duty of care extends to this area as much as to the workplace and you must work with your staff to find solutions.
But if you have put all appropriate safety measures in place, discussed them at length with your staff, considered the individual situation of all employees and still have workers who will not return, you must consider your options.
You might ask the employee to agree to a period of unpaid leave or withhold their pay for non-attendance. Both need approaching cautiously and with sensitivity if issues around discrimination and workplace bullying are to be avoided.
Still more risky is the option of disciplinary proceedings. Much of this territory is still unexplored in Employment Tribunals and there are many grey areas in terms of the law. Better to work with your staff and save yourself a costly legal bill and reputational damage.
These are complex areas which a blog such as this can only touch on. For more detailed help and advice please get in touch for a free consultation.