What to do if an employee refuses to return to the office after working from home?

With guidance to work from home having been lifted, employers need to plan a return to work for employees – many of whom will have been working from home for some time. Employees, however, may have different plans. Many people will still have concerns about the spread of Covid-19, particularly in workplaces which can lead to employees feeling particularly unsafe; especially if they are unvaccinated, medically vulnerable, or are living with a person who is vulnerable. So, can employees refuse to return to work, and what are the steps employers should take where this issue arises?

Does an employee have a legal right to refuse to return to work?

Technically yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees a legal right to stay away from their workplace where they have a reasonable belief that it would put them at risk or serious and imminent danger.

Employees also have specific protections where they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.

If an employee refuses to return to work, as they reasonably believe doing so would pose a serious risk to their health and safety, it would be unlawful to discipline them and dismissal could result in an unfair dismissal claim.

Will these protections extend to all employees?

In practice, it is likely that this protection will only extend to those who have a particular reason to hold these beliefs. Those who are clinically vulnerable or unvaccinated may be much more at risk than other employees. It is also likely that the protection would extend to those who live with someone who is clinically vulnerable or unvaccinated.

In addition, employees with mental health issues such as stress or anxiety may also believe that returning to work and concerns about risking exposure to the virus may also pose an imminent and serious risk to their health and safety.

Employers must also be mindful that employees who suffer from long-term physical or mental illness, have a disability or who are pregnant have additional protections. Disciplinary action or dismissal against any such employee may amount to discrimination.

Can disciplinary action be taken against an employee refusing to return?

An employee has a contractual obligation to return to their position in their usual place of work unless they have a valid reason for refusal.

As a result, an employer will be justified in taking disciplinary action should an employee refuse to do so. Employers must follow their disciplinary procedures for a failure to follow reasonable instructions or for absence from work. Caution should however be taken when disciplining employees who refuse to return to work.

If you would like further advice as to handle any situations where employees are refusing to return to the workplace, then please do get in touch with a member of the team on 01752 663295.