Employees who refuse to return to work

One concern that many employers have is how to deal with employees who refuse to return to work when requested. Can this be treated as misconduct? Employers should tread carefully.

The first thing to be sure of is that everything possible has been done to make the workplace safe and that this has been communicated to employees. Employees should be encouraged to raise any remaining concerns that they have so that these can be addressed individually. If the employer has not carried out a risk assessment and taken the steps described above to make the workplace safe then asking employees to return to work is unlikely to be a reasonable instruction. Withholding pay in these circumstances may be a breach of contract and any dismissal is likely to be unfair.

If a furloughed employee is unwilling to return and has a legitimate concern, such as an underlying risk factor, then the employer should try to find a solution. Could the work be re-arranged so that additional social distancing measures should apply to that employee? Is it really impossible for the employee’s work to be done at home. The employer could even consider simply continuing the furlough period in the hope that the level of infection will fall sufficiently to allay the employee’s fears. Another alternative is to accept that the employee is incapable of work in the current conditions and place them on sick leave.

If the employer does not believe that the employee has genuine concerns about their safety then there may be no alternative but to treat their refusal to return to work as misconduct. This will mean not paying them for their period of absence and may result in them being dismissed. The key risk here is that the employee claims the protection of the health and safety rights set out in the Employment Rights Act 1996.