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Can employers force employees back to work after lockdown?

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BY Gerry O'Hare
Employment Law & HR
BG Purple

Once the coronavirus lockdown lifts, employees may be nervous about returning to work. 

 

Some employees may be nervous generally, for example because of concerns about potentially exposing someone they live with to the virus, or because of anxiety-related disorders. Some employees may be more vulnerable due to their age, or they may have underlying health conditions.

 

Broadly, employers need to communicate the protective measures that have been put in place to allow a safe return to work.  In situations where an employee is reluctant to return, the first step is for the employer to fully understand the reasons for that.  The employer should confirm what steps it has taken (or will take) to protect health and safety, as well as consider any further suggestions from the employee which would reassure them.  If it’s feasible, home working, reduced hours, a different working pattern or amended duties can be explored.   

 

Ultimately, if the employee continues to refuse to return, the employer could permit the employee to take unpaid leave, possibly combined with annual leave, for a period.  Given it is not clear when ‘normal life’ will resume, it would be sensible to review this arrangement regularly to determine whether it can continue.

 

If the situation continues indefinitely, the employer could be in a position to dismiss fairly on the grounds of capability or because the employee refuses to follow a reasonable instruction to return to work.  However, we would recommend that employers seek legal advice before proceeding down this route.  If the employee’s objections are based on health and safety concerns and they are subsequently dismissed, it may be possible for them to bring a claim for unfair dismissal related to health and safety breaches or a whistleblowing claim as well as discrimination claims.

 

Given the many uncertainties that linger around COVID-19, employees and unions may be hesitant to return to work.  At the same time, many employers will be keen to resume operations in order to survive.  For some time, it will be a tricky balance.  Employers will have to tread carefully.

 

For more information, Law At Work Radio has an interview with Heather Maclean, one of our Senior Associate Employment Solicitors, on whistleblowing and claims related to employee concerns on workplace health and safety.

 

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