CORONAVIRUS - 29.01.2021

Refusing to return after lockdown

When the lockdown restrictions are eventually eased many employers will start bringing employees back into the workplace. But what if an employee refuses to come back?

Back to “normal”. At some point the stringent lockdown restrictions will start to be eased. The government has indicated that these restrictions will be lifted gradually, with a phased return to “normal”. It also intends to issue guidance for employers on bringing employees back into the workplace safely. But what’s the legal situation if an employee refuses to return to work after lockdown?

Grounds for refusal? Whether or not an employee can legally refuse to return to work after lockdown will ultimately depend on the reason for their refusal. For example, if the employee has simply become used to homeworking but you’ve always been clear that this was a only temporary arrangement, you can insist that they return to work at the appropriate time (although you might negotiate some continued homeworking to keep them happy).

Health reasons. On the other hand, the employee might be refusing to return to work because they have a health condition and/or are genuinely worried about their health and safety. If their concerns are valid and risks can’t be reduced or removed altogether, e.g. through working practices and the use of social distancing and PPE, the employee could well be within their rights to refuse. That said, if you’ve carried out a thorough risk assessment and implemented all reasonable safety measures, in the absence of a medical concern or condition, the employee’s refusal is likely to be unreasonable and any absence treated as unauthorised.

Scared to return. Some employees may refuse to return to work because they are fearful or have anxiety about increased social contact. For them you should explain all of the steps you are taking to keep them safe and discuss their concerns.

Tip. An employee who refuses to return to work due to them having coronavirus concerns should only be dismissed where their refusal is unjustified and has no solid basis.

Where the employee has genuine and valid concerns about their health and safety, or they have a medical condition, their refusal could be justified. If this doesn’t apply, you can insist they return to work.

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