Bringing employees back to work: The reluctant to returner

Advice for employers on bringing employees back to work

As the lockdown restrictions start to ease and more businesses are starting to think about returning to work, employers are beginning to consider what they need to do to get staff back to work. One of the issues that is coming up frequently from employers and employees we are speaking to, is those employees who are reluctant to return to work.

How do you manage someone who does not want to return to work?

1. Handle with care

We are of course in an ‘unprecedented’ time and there are extremely varying views on the impact of coronavirus and of the degree to which we should be easing out of lockdown. Many people have been through and are continuing to go through a stressful and anxious time, and there are those who have a genuine fear of ill health and death as a result of the virus.

It is therefore important to take into consideration the wide spectrum of people and concerns from your employees.

The key is to remember that they are human beings with their own unique world view which has been shaped by many years of experiences and influences and therefore you should not make assumptions about their reasons but rather seek to understand their perspective.

Try to get to the real root of what their concerns are and why they feel this way, it will certainly help you to manage them and shape the way you handle the return to work process if you have a full picture from their perspective.

2. Communication

Start the process and explain what your plans are at the earliest possible stage, ‘sewing the seeds’ about returning to work as soon as you are able.

Employees who have been furloughed, potentially for up to 3 months are certainly going to feel nervous about returning to work, whether it is about coronavirus or just the normal day to day ‘work worries’, so maintain regular communication and give them all of the facts and information you have.

Seek to reassure them of the steps you are taking to mitigate the risks to them and keep the dialogue open throughout this time.

3. Consider if they are high risk

If an employee has a medical condition which places them in a higher risk category, then it is possible that their medical condition could also be a disability for the purposes of the Equality Act. If this is the case, then you will need to consider your obligations to make reasonable adjustments and to treat them fairly.

You can find an up to date list of those who are high risk on the NHS website here: https://www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk-from-coronavirus/

 4. Give employees confidence to return

Listen to them and consult on the risk assessment and steps you are taking to get them back to work safely. Employees are more likely to be co-operative and agree to return if they have confidence in the Health and Safety steps you have taken.

Some steps that can help to give employees confidence in returning include:

• Get employees involved in the risk assessment and preparation processes at the earliest stage.
• Provide a copy to employees of the completed risk assessment.
• Explain in detail what you are doing to mitigate the risk and stay up to date on latest guidance.
• Genuinely listen and respond to employee concerns.
• Encourage employees to make suggestions and tell you what will help to make them feel safe.

5. Try to reach an agreement with the employee

The best outcome is to try to reach an agreement with the employee in any way that you can to enable the continued relationship between you and to get the employee back to work.

If you would like inspiration, ideas or an objective view on how to do this then we are of course happy to help and discuss with you, just give us a call 01983 897003 / 023 8098 2006.

Can employees be forced to return to work?

There is no way to ‘force’ an employee to work, if they refuse to return. There are options available (as set out below) but you must keep in mind legal protection for employees in these circumstances.

Where an employee reasonably believes that they are in serious or imminent circumstances of danger they can refuse to return to the place of work. If an employee is dismissed in these circumstances, they can make a claim for automatic unfair dismissal. There is no qualifying length of service for this claim.

Whether there is a serious or imminent danger or circumstances of danger will depend on the individual involved and the facts of the particular situation.

It is therefore important to seek advice and think carefully about what steps you take to ‘encourage’ an employee to return against their will.

Do I have to keep an employee furloughed if they refuse to return?

There is no obligation on you to continue to furlough the employee, the decision is entirely at your discretion.

You should take into consideration all of the other points set out in this article when deciding whether to agree to keep an employee furloughed or not.

Options if they continue to refuse to return to work

If, despite your best efforts an employee still refuses to return to work then you can:

• Agree to their request to remain furloughed.
• Offer for them to take annual leave (if they have any untaken) – of course this may not last for the duration of the period that the employee feels unsafe to return and so you may have to move to unpaid leave.
• Offer for them to take agreed unpaid leave.
• Go down the disciplinary route.

Should I discipline an employee who refuses to come to work?

The option of following your disciplinary procedure in respect of the employees ‘refusal to follow a legitimate management instruction’ is still available for you should you wish, but my advice is to think very carefully about what you are trying to achieve with this before starting the process.

Aside from the potential legal risks (see below) there is the long term impact on your relationship with the employee that this action could have. If they feel aggrieved by their treatment they could of course leave their employment, which if they are a valuable employee may impact your business long term, or potentially even worse, they remain employed but are not productive and in fact are actively very negative and bring down colleagues because of their ill feeling towards you.

We are not in the ‘normal’ world of work now and so I believe that you have to think differently about how you handle these sorts of issues, and actually conceding and agreeing to keep them furloughed, or unpaid leave, may be the best option.

Employees have additional protection in respect of Health and Safety concerns

It is important to remember that employees have additional protections if they are subjected to dismissal or any detriment by any act, or any deliberate failure to act, by their employer which is on the ground that:

• in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

• in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

For the purposes of this, whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

There is no case law or precedent on this issue, and it is not known how an Employment Tribunal would view a claim in respect of an employee’s reasonable belief that coronavirus is a serious and imminent danger. It is therefore advisable to take a cautious approach and seek advice specific to the individual before taking action.

To conclude

The main thing with reluctant returners is to take steps to communicate about return to work as early as possible, try to empathise with the employee and understand what their concerns really are. Consider what can be done to maintain a positive and healthy relationship between you so that the employee feels confident to return now or in the near future.

Most importantly if you are in doubt seek advice and do not rush into taking action.

Please leave a question or comments below.

This article was written by Alison Colley, Solicitor and Founder of Real Employment Law Advice.

Image from Unsplash: nik-shuliahin-BuNWp1bL0nc-unsplash

---

If you have any other questions please let me know: alison@realemploymentlawadvice.co.uk or for a free initial telephone call contact the office on 01983 897003, 023 8098 2006, 01722 653001 or 020 3470 0007.

---

Other Relevant Articles for Employers

Frequently Asked Questions about the Furlough Scheme

Furlough / Job Retention Scheme & Parental Rights

Business reputation consideration and furlough

Furlough and Directors

Returning to work after lockdown & furlough

Key points employers should be considering during furlough

---

External Resources

HMRC guidance for employers  

Step by step guide for employers to claim

How to work out the 80% to claim via the job retention scheme

Treasury Direction setting out HMRC powers to enact the job retention scheme

Government response to Covid 19

ACAS guidance on the coronavirus

Guidance in respect of apprentices and furlough

---

 DIY Redundancy Documents & Process for Employers available to download for £100 plus VAT includes:

1. Redundancy plan – step by step guide
2. Timetable to use – collective consultation and non-collective consultation versions
3. Letter warning employees of redundancy situation
4. First letter to employee representatives re proposed redundancies
5. Letter to employees requesting volunteers for redundancy
6. Letter to employee representatives with details of collective consultation process
7. Ballot paper for election of employee representatives
8. Nomination form for employee representatives
9. Notice to employees with outcome of the elections
10. Notice to employees re Employee representative elections
11. Letter follow up on individual meeting
12. Letter offer of alternative employment
13. Letter to individual employees – provisional selection for redundancy
14. Letter to individual employees confirming dismissal for redundancy
15. Example Redundancy selection criteria

You can purchase the documents here: HERE

For more information or to access these offers for employers please contact us on 01983 897003 or by email: alison@realemploymentlawadvice.co.uk

---

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

---