Can employees refuse to return to the workplace after lockdown?

by Kate Palmer, Associate Director of Advisory at Peninsula

In normal circumstances, staff refusing to come into work could potentially be treated as misconduct, provided they have no valid reason for doing so.

However, the upcoming post-lockdown weeks are set to be far from normal. For many, the prospect of returning to work with the coronavirus continuing to pose a significant risk to the public may be very unsettling and cause them to act in ways they would otherwise not to. Therefore, while employers could consider disciplining staff who refuse to attend work, they should proceed carefully.

Where workers are coming in daily, employers should work to reassure any nervous employees that they aren’t being put at risk by being asked to return to work. Communication should be maintained with the workforce to ensure they are aware of any social distancing measures that have been put in place, in line with government guidance, to help protect them from contracting the virus.

Companies can also demonstrate their commitment to safety by emphasizing efforts to deep-clean workspaces, making hand sanitizers and protective gear available, and restricting the number of visitors to the building. Implementing phased returns for some members of staff and putting into place new workplace layouts that maintain levels of distance between colleagues could also help to alleviate some of their concerns.

In situations where a member of staff does refuse to come in, it is important to consider their specific circumstances before making any decision in how to respond to their actions. For example, an employee may fall into the high-risk category, or their partner may have been advised by the NHS to shield for 12 weeks. Alternatively, the coronavirus pandemic may have made a previous mental health condition, such as anxiety, harder for the employee to manage. In these situations, employers could work to consider allowing a new or extended period of home-working, or arrange for them to take time off as holiday or unpaid leave.

Companies should always remember that employee safety has to be the priority during the initial return to work period. Requiring employees to work in an environment that puts their health and safety at risk could serve to breach an employer’s duty of care.