Your team is a vital part of your daily operations, so what if an employee complains about returning to work due to COVID concerns? Even worse, what if they are refusing to return to work after COVID-19, citing health risks for themselves or a family member as the reason?
The UK has now published and is implementing its roadmap out of lockdown, with the legal requirement for people to stay at home to work wherever they can technically ending on 29th March. Whilst the UK’s roadmap leads up to 21st June and is subject to ongoing review, many of our clients are already putting steps into place to start returning their staff to the workplace. However, a number have already asked us for advice when employees are refusing to return to work after COVID-19 due to concerns about their own or their family’s health and safety.
What is the legal Requirement re COVID and return to work?
The Management of Health & Safety at Work Regulations 1999 place a mandatory requirement for employers to complete risk assessments. This includes assessment of COVID-19 risks and should include control measures to enable your teams to safely return to work.
You have a duty of care to your staff under the Health & Safety at Work Act 1974, so if your employee feels as though you aren’t taking the correct steps to keep them safe in the workplace, then they may have grounds to refuse to come back to work. However, they would have to demonstrate that your measures were not in line with the government standards for social distancing etc.
Can an employee refuse to return to work on grounds of Health & Safety?
If you have carried out a thorough risk assessment and implemented reasonable safety measures then an employee should cooperate and return to work.
However, they may refuse to return to work on medical grounds, but they can only do this if they have a valid sick note from a medical practitioner (after the first seven days). Without this, any absence can be treated as unauthorised absence as shielding has now ceased. Your employment (eg sickness absence, discipline policy etc) will then apply as the employee may be in breach of contract. However, you will need to demonstrate to any subsequent employment tribunal that the COVID safety measures you have in place meet at least the minimum government guidance for your industry sector. Note that there are some variations in some sectors, eg education and care and you should check you are following these as well as the general government guidance.
We can provide concise easy to follow advice via our Safety Management Systems and we can carry out detailed Safety Auditing to ensure your place of work is adhering to all current government guidance.
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Can an employee refuse to return to work on medical grounds?
Since March 29th 2021 shielding has no longer been deemed to be necessary and employees who are clinically extremely vulnerable have been expected to work as normal. Unless there are significant medical conditions which are substantiated by a medical professional the employee should cooperate and return to work. In this case the employer’s sickness absence scheme will apply as the worker will be deemed as absent due to sickness.
Will an employment tribunal favour an employee refusing to return to work after COVID-19?
The recent employment tribunal ruling below (Rodger v Leeds Laser Culling) provides some clarity on this question. It is supportive of employers who take reasonable precautions and then have workers who decline to return to work.
Mr Rodgers worked alongside five other people in a warehouse. His child has a chronic condition and said that he did not feel safe coming into work during the first national lockdown because of his fears of catching COVID-19. His employer was not one of those required to close. Rodgers was dismissed in April 2020 because his employer said that his failure to attend work was not reasonable. His job could not be done from home. There were appropriate safety measures at work to protect staff. The company had advised all staff in March 2020 that they were putting measures in place to allow work to continue as normal.
The tribunal found that the control measures met generally accepted standards. Mr Rodgers’ claim was ruled out. The judge understood that the employee had serious concerns about the risk of catching Coronavirus outside his home, but these fears were not related to the workplace. Mr Rodgers admitted that social distancing was not hard in the workplace and that frequent handwashing was practised.
The case failed due to Mr Rodger’s response to the perceived threat. The steps he took to protect himself (deciding not to attend work) were not appropriate. His employer had suitable measures in place to protect its employees and cannot be made liable for the particularly risk-averse nature of one employee. One failed claim does not constitute a binding precedent but indicates that where businesses adhere to government guidelines, they are unlikely to be made liable for this type of claim.
If you are having issues with an employee returning to work or want to ensure your workplace is taking suitable precautions, don’t hesitate to get in touch with one of our Health & Safety experts on 01622 717700 or email us at firstname.lastname@example.org