Issues that are arising for employers who want to bring employees back to work from furlough?

Dealing with staff who do not want to come back to work

As lockdown eases and restrictions on sectors are lifting, many businesses across the UK are starting to bring their staff back into work.   However, this is not proving to be a simple task as not all employees are ready or willing to return to the workplace.   What can an employer do when faced with this kind of situation?    Here we consider the most common reasons as to why employees may be reluctant or unwilling to return and explore the options available to an employer. 

1. “I don’t have any childcare” 

As schools remain closed for several year groups, many employees will still be caring for their children at home and may not have any other childcare options.   

The main options where employees have no childcare available are as follows:

Furlough 

Although the reopening of some nurseries at the beginning of the month will have enabled some parents to return to work, many school age children will still be at home.   Given the government has stated that not having access to childcare is an obvious barrier to being able to return to work, you should consider keeping employees who are genuinely struggling to find suitable childcare on furlough.   In addition, a refusal to allow a female employee who has childcare responsibilities to remain on furlough leave could amount to indirect sex discrimination.  Women are statistically more likely to have childcare responsibilities than men, so are more likely to be negatively impacted by an employer’s decision not to extend furlough leave for staff.     

Time off for dependants 

Employees have the right to take time off to care for dependants where this is necessary and due to an unexpected breakdown in care arrangements.   Ordinarily, this time off would only last a couple of days, to allow the employee time to organise the care of their dependant.   However, in the current climate, the time needed is likely to be much longer as schools remain closed for many year groups and the advice is still to avoid unnecessary journeys.  

Parental leave 

Employees who have worked for you for over one year and who care for a child under the age of 18 are entitled to 18 week’s unpaid parental leave for each child.   The maximum parental leave that can be taken in any one year is  4 weeks for each child unless an employer agrees otherwise.

Other options to consider in discussion with the employee include allowing the employee to take annual leave or temporarily allocating different duties to them which can be undertaken at home.     

2. “I am worried about catching the virus if I come back to work”

All employers have a duty to protect the health, safety and welfare of their workers which involves assessing any risk to which workers are exposed and taking all reasonable steps to remove or minimise those risks.   

For as long as COVID-19 continues to pose a threat, employers must give special consideration to the risk this poses to its workers.  Therefore, once a decision has been made to return to work, employers must carry out a thorough risk assessment – taking into account government guidance and industry specific advice – to ensure that the appropriate measures are put in place to eliminate the risks associated with returning to the work placed or, whether this is not possible, to minimise them.    It is then imperative that the employer communicate with staff about the arrangements put in place to control the risks associated with the coronavirus to ensure that the measures taken are effective.  

It is very likely, however, that even though you are taking all the necessary precautions, that some individuals will remain anxious about returning to work.  This is understandable and your duty of care to your staff includes taking practical measures to support their mental health and well-being.   

Therefore, if an employee says they are unable to return to work citing anxiety or a similar condition as the reason, it is important that you discuss their concerns and investigate whether there is anything you can do to reassure them or support them, obtaining medical advice if necessary.   If the employee is not well enough to return to work as a result of their anxiety or similar condition, they may be signed off sick as a result, in which case they would be entitled to Statutory Sick Pay.   

If they are not signed off sick, you will still need to bear in mind that an employee who has a long term mental health condition such as anxiety may be disabled for the purposes of the Equality Act 2010, in which case you will be under a duty to make reasonable adjustments.   This could include allowing the employee to remain on furlough or to stay at home on unpaid leave.    

It is also important to raise here the disproportionate risk posed by COVID 19 to black, asian and minority ethnic communities (BAME).   If any of your staff are anxious about returning to work because they are from BAME backgrounds you need to consider allowing them to remain on furlough or explore the alternative options mentioned above which avoid the need to come into work.

3. “I believe I will be in serious and imminent danger if I return to work” 

All employees are protected under the law from any detrimental treatment or dismissal if they refuse to come to work in circumstances where they have a reasonable belief that they are in serious and imminent danger.   This belief must be reasonable and it has to be genuinely held by the employee.  Providing those two conditions are met, it does not matter if you do not agree that there is any serious danger – the employee will be entitled to stay at home on full pay while the threat of serious danger remains (as to not pay the employee would probably be viewed as an unlawful detriment).  

So, how do you deal with this situation? 

If you are confident you have complied with the government advice and sector guidance, put in place all the necessary arrangements to protect your workers and no cases of COVID 19 have been detected among your workforce, then you should have a good case to argue that the employee’s belief that they are in imminent danger is unreasonable (unless, of course, the employee has a particular vulnerability – see below).  However, these are unprecedented times and the question of what constitutes imminent and serious danger in the context of the current crisis has not been tested in the Employment Tribunals.   

Our advice is to pre-empt such concerns arising by communicating fully to your staff the steps you are taking to protect their safety at work and that you involve them in that process by asking for their own views and proposals.  If some employees remain worried, you should discuss their individual concerns and identify if there is anything you can reasonably do to overcome them, making sure you keep a record of everything you do to try and resolve the situation.   

Extreme caution needs to be exercised and advice sought before considering taking disciplinary action against any employee who you dispute has a reasonable and genuinely held belief  that they will be in imminent and serious danger because we do not as yet know what approach a tribunal will take.     

4. “I am classed as being clinically extremely vulnerable – do I have to come back?”

The answer is no, workers who are clinically extremely vulnerable and have been advised to shield themselves should not be required to return to the workplace until government advice changes.   If the worker cannot work from home, they are entitled to statutory sick pay or if you have put them on furlough, they can remain on this. 

5. “I am clinically vulnerable and worried for my health if I return.” 

Clinically vulnerable workers who are unable to work from home can return to work, but employers are required to take extra care in respect of such workers, including making sure safe distancing can be maintained.   If this is not possible then you will have to decide if this is an acceptable level of risk.   

Given the legal risks of requiring someone who is vulnerable (and who may also qualify as disabled for the purposes of the Equality Act 2010 ) to return to work if they are unhappy to do so, it would be safer to allow them to remain on furlough or explore options such as changing the employee’s duties so they can work from home or taking annual leave or unpaid leave.   

6. “I live with a vulnerable person and I don’t want to put them at risk by returning to work.” 

This is a very tricky question.   In theory you can require such employees to return to work because your duty of care only extends to your employees – it does not extend to those who live with your employees.    However, it would be wrong to ignore the concerns of an employee about their family members, not least because of the duty you owe to take steps to safeguard the mental health and well-being of staff which may well suffer if they are worried about putting somebody they live with at risk.  Also, the government has said that businesses should give particular consideration to whether or not employees who live with clinically extremely vulnerable persons should go to work.    

In this kind of situation therefore, you should consider if there are other alternatives available, such as those already mentioned including letting the employee remain on furlough or letting them take unpaid leave.   

7. “I am pregnant and am worried about my health and safety and that of my unborn child if I return.”

Pregnant workers are classed as clinically vulnerable which means that although they can return to the workplace, extra care has to be taken to ensure that the workplace is safe for them, particularly because the risks posed by COVID-19 to pregnant women and their babies remain unclear.   You must carry out a specific risk assessment for pregnant workers and do all that you can do to prevent or remove any risks that are identified.  This will include being extra vigilant in ensuring safe distancing can be maintained in the workplace.  

If you cannot ensure safe working conditions then you will need to temporarily alter the working conditions or hours of the pregnant worker or provide suitable alternative work on the same terms and conditions.  If none of these options are possible then the employee has the right to be suspended on full pay (due to the special protection afforded in the law to pregnant women) for as long as the employee or their baby is in danger.  

8. “I can’t come back because there is no one to care for my goldfish/puppy/cat…etc.”

Ok, it’s unlikely that anyone is going to give this excuse (although reportedly sales of puppies have gone up hugely during lockdown so you never know…) but you get the gist.  Here we are referring to someone who does not fall into any of the above categories, who is not citing any particular serious danger but who simply does not want to come back to work and is coming up with all sorts of excuses.   

In these circumstances you could potentially take disciplinary action against such employees providing you are confident you have done and are doing all you can to minimise the risks and provide a safe workplace. However, it is best to get advice before doing this because there is no legal precedent for how such action will be interpreted by the tribunals.   

To conclude

Ultimately, how you react to an employee’s refusal to return to work will depend very much on the individual circumstances of their case and this is for general guidance only.  If in any doubt about how to deal with someone who objects to returning or a reluctant returner, please contact us.     

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

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

Other Relevant Articles for Employers

The reluctant returner: How can employers deal with employees who do not want to return from furlough

What notice pay do you pay during furlough?

Furlough and Annual Leave

Furlough / Job Retention Scheme & Parental Rights

Business Reputation Considerations and Furlough

Furlough and Directors

Returning to work after lockdown & furlough

Key points employers should be considering during furlough

External Resources

PHE and BEIS: COVID-19: guidance for employees, employers and businesses

World Health Organisation guidance

Workplace social distancing guidance

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