What if they won't come back to work?

Friday 24th April 2020

In the news we have seen signs of awakening – more traffic on the motorways, B&Q opening some of their stores, and builders going back onto building sites.

However, for most businesses a question will be at the forefront of their minds as they seeks to reopen and bring back staff from furlough – what if the staff won’t come back into work?

What can you do if this happens?

If an employee can work from home, then this may be the best answer. You can require time sheets and updates to check that work is actually being done – this would not be an unreasonable step provided it was not excessive. If you do not have a home working policy in place you should strongly consider this.

If an employee has health issues themselves then you need to consider the public health guidance – if for example the employee was shielding or was living with someone who was shielding then you may have to leave that employee on furlough. You have a duty to consider your employees’ health and safety and also ensure that you are not discriminating against your employees’ based on their protected characteristics.

In some cases child care may be the reason why an employee cannot return to work especially as schools at the time of writing this blog are not fully open. An employee generally has the right to various amounts of unpaid leave in relation to their children. An employee with dependents can take a reasonable amount of unpaid time off to deal with emergency care issues – this is usually no more than one or two days but as an employer you can be more generous. Also qualifying parents have the right to unpaid parental leave – The entitlement is to 18 weeks’ leave for each child up to their 18th birthday. Time has to be taken in blocks on one week and unless the employer agrees otherwise a maximum of 4 weeks can be taken in a year. To be eligible an employee has to have been employed for more than a year and be named on the child’s birth or adoption certificate or have an expectation of parental responsibility. Generally speaking employees should give 21 days of notice of their request and employers can, with a significant reason, postpone the leave for a period of 6 months, by writing to the employee within 7 days of their request.

You also need to consider whether you can follow public health guidance in relation to returning employees – can they work following the social distancing guide lines, can you provide PPE, can you adjust working patterns to minimise contact between staff, are you providing cleaning and sanitising products for communal areas such as toilets, kitchens etc? If so and you would be well to document a risk assessment, then for an employee who is healthy and not in any of the high risk categories, then to refuse to come into work could be treated as a failure to obey a lawful and reasonable request and the absence can be treated as unauthorised. This means that the employee is not likely to be entitled to be paid during their absence. You should not however jump into disciplinary action lightly as each case should be properly and fairly considered before any warning or dismissal is levied.

A complaint about an unsafe workplace could fall within the realms of a protected disclosure which may give an employee grounds to bring an automatic unfair dismissal claim, if they were dismissed as a result. This also means that employees with less than 2 years continuous employment could bring a claim. It is vitally important therefore that you carefully consider decisions, document your decisions, have written risk assessments and plans of actions and share them where appropriate with the employees. Ensure you implement social distancing in the work place and provide appropriate PPE and document this.

Some employers will have a concern about treating different employees differently – it’s not fair, it does not seem right. However, provided there is a legitimate reason in line with public health guidance and you are not being discriminatory (based on protected characteristics – and remember that indirect discrimination has a defence if you can show that your policy, practice or criteria is a proportionate means of achieving a legitimate aim), it is possible to take different approaches in different circumstances – the key is communication.

For further advice contact a member of our employment team on 01384 811 811 or email Hannah Scott at h.scott@waldrons.co.uk