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Last updated: 16 Jun 2021
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What to do if an employee still isn’t comfortable returning to work post 21 June

COVID-19 has undoubtedly heightened concerns over individual safety, and therefore its important than employers consider their approach should an employee still not feel comfortable returning to the office post 19 July, when current lockdown restrictions are due to have ceased.

What are the current guidelines on returning to working in the office?

At present, government guidance remains to work from home, although if this isn’t possible, employees can now return to a COVID-19 secure workplace. This includes those who have been shielding as, where it is not possible to work from home and their roles are considered critical, shielding is no longer required. With parts of the economy opening, the injunction to work from home where possible is no longer applicable to all, and it’s hoped on 19 July the government will be in a position to remove all legal limits on social contact. 

About the author

Sarah Dalton

daltons@buzzacott.co.uk

What are the current guidelines on returning to working in the office?

At present, government guidance remains to work from home, although if this isn’t possible, employees can now return to a COVID-19 secure workplace. This includes those who have been shielding as, where it is not possible to work from home and their roles are considered critical, shielding is no longer required. With parts of the economy opening, the injunction to work from home where possible is no longer applicable to all, and it’s hoped on 19 July the government will be in a position to remove all legal limits on social contact. 

Employee welfare considerations

Employee welfare considerations

As is human nature, some employees will understandably be more nervous about returning to the workplace (given the amount of time we’ve been instructed to work remotely) than others.

When planning a return to working in the office, your guiding principle should be to safeguard employees’ health and well-being, by taking every step to provide a COVID-19 secure working environment.

Read our advice for making your office a safe place to work

Should they arise, employers should be particularly careful in how they respond to claims they’ve not put in place sufficient measures to ensure safety. All employees are protected in law for refusing to come to work where they have a reasonable belief that it poses a serious and imminent threat to their health. Therefore, if an employee refuses to return to the workplace, this will need to be carefully addressed with individual circumstances considered. While it may be difficult to accommodate the wishes of all employees, employers should act in a way that is fair and reasonable, keeping in mind the duty of mutual trust and confidence they hold, and not to discriminate. It’s in these situations that consultation with individual employees is essential. It’s not sufficient simply to say individual circumstances have been taken into account, there must be strong evidence to demonstrate these have been considered, discussed with the employee, and a record made.

What to do if a satisfactory conclusion can’t be reached?

What to do if a satisfactory conclusion can’t be reached?

If an employer has carried out a risk assessment and put in place changes to enable a safe return and an employee still refuses to return to work, then they can ask their employee to agree to a period of unpaid leave or use some of their holiday entitlement instead. If the employee in question is on furlough, they could remain on furlough and be paid under the job retention scheme (while this is still in operation) until any safety issues are resolved. Alternatively, if the needs of the business have changed, it may even be necessary to move employees into different roles. It is, however, essential that employers do not breach employment contracts and where measures are not provided for under the employment contract, employee agreement is obtained prior to implementing any change.

Ultimately, when social distancing measures are lifted (provided the appropriate risk assessments have been conducted), employees will be expected to return to their workplaces. But employers must be mindful of the impact of their decisions to reach this point, as a breach of employment legislation can result in expensive litigation and considerable reputational damage. Additionally, employers should be aware that under equality law, a discrimination or victimisation claim can also be brought by an employee against another individual employee, rather than just the employer - a trend which is currently rising. Therefore, the importance of adhering to employment legislation and HR best practice cannot be underestimated.

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Navigating a successful return to work for all your employees can be complex. Should you require any support, advice, or guidance on the actions you need to take, simply complete the form below and one of our experts will be in touch.

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