Returning to work

27 May 2020 | Shabir Karatella

Can my employer force me to return to work?

Yes, they can. As an employee, you are governed by the contract of employment, and this will usually stipulate your usual place of work where you are required to work. Furthermore, an employer can issue a reasonable instruction to an employee, and the employee is obliged to carry out such reasonable instructions. Failure to return to work under these circumstances can be interpreted as a breach of contract by the employee and an act of misconduct. These could lead to disciplinary action with dismissal as a possible sanction.

Even if the job activities can be performed at home, an employer is not required to agree to home working. However, the employer is under a statutory duty under the Health and Safety at Work Act 1974 (and various regulations made under it) to ensure that they provide a safe working environment and a safe system of work. To comply with these duties, the employer would be expected to adhere to advice issued by the government and Public Health England. The current social distancing and isolation advice is to stay at home, not to go into work unless the job can be carried out from home. Even if the job can be carried out from home, the employer can still require you to attend work, provided it is safe to do so.

What is the employer expected to do?

An employer should carry out a risk assessment to identify all the potential risks that employees could be exposed to when they return to work. This of course should include COVID-19. The employer should identify who is/could be at risk, how many could be at risk, how they could be affected, classify the risks as low/medium/high, and finally, identify control measures put in place to minimise the impact of these risks. Elimination of the risk is clearly not viable; thus, steps must be taken to reduce the possibility and impact of infection. Employers should consider whether working from home is possible. If not, will they be safe at work? Introduce a rota for working from the office,  introducing staggered start times, staggered shifts – minimise contact and the number of people in the office, setting up rigorous social distancing policies in the office (with nominated people responsible for monitoring and enforcing it), set up strict hygiene policies – provision of hand sanitizers at the main entrance to the premises, and generally everywhere on site, rigorous cleaning of door handles (especially to the doors leading to the toilet) and work surfaces and adequate ventilation. They could also check temperature on each employee on entering/leaving the premises. Where relevant, the employer must supply personal protective equipment.

Employers’ should be reasonably certain that having taken adequate safety measures, nothing more can be done to protect the safety of staff before allowing them in. If safety is in doubt, the employees should be kept away from work until such time when safety can be maintained. Unions are quite rightly very vociferous about their members safety, and they should b involved in any consultations and disputes.

Once the employer has followed PHE/Govt advice, and implemented safety steps into the workplace, it becomes very difficult for an employee to refuse to go into work.

What if an employee has safety concerns about returning to work?

Staff should be informed and reassured that all appropriate advice has been taken, and steps taken in line with current guidelines and practices. If a risk assessment was carried out and control measures put into place, the employee should not have any legitimate concerns. But if they do, they should raise them with the employer.

In extreme cases, employees may feel very strongly that their safety is being prejudiced at work and so refuse to come into work. Willfully refusing to come into work is a very serious matter, and should not be taken lightly, as the consequences can be very serious. At the same time, employers should not rush into taking drastic disciplinary action. Instead liaise with the employee, and others at large, to see what the common concerns are, and what can be done to allay those fears. Employers should be mindful that any disciplinary or detrimental action against an employee due to or is influenced by a health and safety concern, could potentially be automatically unfair. This delicate situation must be handled very sensitively.

At Quest, we can offer you the appropriate HR advice in order to help you to manage and handle such sensitive issues before they become genuine problems. We have the necessary HR and Health and Safety expertise to be able to help you and provide a reliable cost-effective consultancy service. Please contact us on 01455852028.

Meet the Quest Experts

Hema Mistry

Head of Operations

With over 20 years experience in HR, Hema draws her expert specialist knowledge from a broad range of industries, including employment advisory and consultancy services, retail, manufacturing and leisure. Being MCIPD qualified enables her to quickly understand how organisations operate, how to interact with their business leaders and to deliver effective commercial and practical solutions.

Andy Hooke

Health, Safety & Training Business Partner

Andy is NEBOSH trained and a technical member of the Institution of Occupational Safety & Health (IOSH). Andy is often found studying the latest updates to legislation to keep his knowledge up to date and provide the best advice. With a passion for health and safety and experience in a range of environments from large corporates to small business, Andy is well placed to support you in all your health and safety needs.

Jill Colston

HR and Training Business Partner

Jill has over 14 years’ experience in HR & Training. Having started a career as a police officer; she changed careers to HR & Training dealing with Equality & Diversity in the workplace. Jill is passionate about Diversity, Inclusion and HR and has supported companies in managing their HR and training needs. She has a wealth of expertise across HR, dealing with challenging casework, company restructure projects, mediation, training, organisational development systems; equality and diversity.

Arti Patel

HR Business Partner

Arti has a strong background in HR and is a fully qualified CIPD member. She has worked with challenging casework and has a good understanding of how to deal with workplace matters as they arise.

Jatinder Tara

Advice Line Team Leader

Jatinder is qualified non-practising Solicitor, he has over 22 years advisory experience in Employment law, HR matters and Employment Tribunal litigation. He manages the legal and HR advice line team ensuring the delivery of advice is effective verbally and in correspondence. He has experience in training and coaching work colleagues in all aspects of legal and employment matters. With his sound understanding of issues arising with in the workplace environment, Jatinder aims to deliver clear and concise client focussed advice.

Anoop Sodhi

HR Employment Relations Advisor

Anoop is an experienced HR Advisor and is part of the Telephone Advice Line Team. Anoop has worked in both the public and private sector, providing Employment Law advice ranging from grievances, disciplinaries, performance management, attendance management and mediation. Anoop is a trained mediator and provides down to earth, pragmatic, commercial advice. Outside of work, Anoop actively participates as a CIPD Board Member of East Midlands.

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