24 May, 2022
In February 2022, Prime Minister Boris Johnson announced the removal of all remaining Covid19 legal restrictions and a number of employers seized the opportunity to inform employees that they were immediately required to return to the workplace. However, a significant number of employees still have concerns regarding contracting Covid19, particularly in the workplace (where they spend the day in the company of others) and furthermore, have to use public transport to commute to their place of work. With the lifting of Covid restrictions, it follows that there is an increased likelihood of employees attending their place of work whilst being contagious, either whilst being symptomatic, having tested positive, or potentially neither. This article looks at what employers can do, should employees refuse to return and insist that they can effectively work from home.
The Employment Rights Act 1996 provides employees with protection against suffering a detriment or being dismissed because of their refusal to attend their place of work under specific circumstances. These are:
The case of Quelch v Courtiers Support Services Limited helps to illustrate how, moving forward, the Employment Tribunals may interpret these rights as they apply to a situation of Covid19 in the workplace.
Mr Quelch worked in an office based role for a financial services company. In March 2020, he had explained to his manager that his cohabitee was clinically vulnerable and it was agreed that he could work from home. Courtiers considered its staff were critical workers, so required them to make a phased return to the office from May 2020. Mr Quelch refused to return. He repeatedly raised health and safety concerns, including sharing an office with colleagues who have school-aged children and that his employer was not complying with Government guidelines. Government guidance at the time required that employers should make reasonable effort to facilitate homeworking as a "first option". Courtiers warned Mr Quelch that a failure to return to the office would result in disciplinary action and when he did not return, they dismissed him for gross misconduct.
Mr Quelch brought a number of Employment Tribunal claims against his employer. At Tribunal, Mr Quelch established that there were no concerns about his performance whilst he worked from home. It was also established that the concerns which he raised with his employer at the time were: specific and related to the effectiveness of Covid19 measures in place; the inability to properly socially distance and that the established bubble arrangements were not being observed in practice. The Tribunal found Mr Quelch's concerns to be well placed and moreover, that the Employer had failed to follow the government guidance and the advice at the time regarding homeworking.
In upholding his automatic unfair dismissal claim, the Tribunal considered that Courtiers had failed to follow the Government's guidelines that "Businesses… should make every reasonable effort to enable working from home as a first option".
It is clear that the health and safety provisions of the Employment Rights Act 1996 still apply to a Covid19 situation and it is vital that employers look to adequately reduce the risks of Covid19 in the workplace as much as they reasonably can. Risk assessments will be absolutely critical in this respect and employers are strongly encouraged to keep records of their risk assessments, from the beginning of the pandemic.
Firstly, it is important to consult with the employee and find out why they are refusing to return. There may be a genuine health and safety reason or a personal consideration, that the employee has not yet shared with their manager or HR.
Workers may believe that returning to the workplace and having an increased risk of exposure to the Covid19 virus could pose an imminent and serious risk to their health and safety, leading to detriment claims if they are disciplined or their pay is withheld due to their refusal to attend the workplace. Employers must also be mindful that employees could have protected characteristics, such as a disability or pregnancy, which give them additional legal protections.
If, as the employer, you believe that during the pandemic you abided by the health and safety regulations and are continuing to take reasonable steps to control the risk of the virus spreading, for example, by having Covid19 policies in place, hand sanitising stations maintained and updated Health and Safety Risk Assessments in place, then requiring an employee to return to the workplace can be deemed as a reasonable request. However, employers should deal with each individual employee's concerns on a case-by-case basis and attempt to explore their concerns both before and during any disciplinary process.
Employers should also be aware that any potential blanket bans on working from home, could potentially result in discrimination claims on the grounds sex or disability discrimination. If, for example, there was a ban on home working which affected parents with young children, this may disproportionately impact more women than men, as women tend to have more childcare responsibilities than men. This could amount to indirect sex discrimination.
If the employee can be considered as qualifying as having a disability under the Equality Act 2010 and they refuse to return to the workplace because of their disability and the potential risk of catching Covid19, the employer should endeavour to arrange a meeting with Occupational Health and consider if any reasonable adjustments can be put into place for those employees, to avoid any potential disability discrimination claims. Reasonable adjustments could include adjusting the employee's working hours to avoid having to travel at peak times and offering free parking or to pay for their parking if they are able to drive. Alternatively, another reasonable adjustment would be to implement hybrid working for that employee because their safety is at greater risk, for example if they have been unable to get the vaccine due to their disability.
We would recommend caution in disciplining employees who refuse to return to the workplace, without having first taken legal advice.
For more information contact Jennifer Smith in our Employment & HR department via email or phone on 0161 918 0016. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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