Dealing with staff who refuse to return to work

Deividas Januska

August 21 2020

Over the last number of weeks, thousands of employees have returned to work under strict new safety measures.

No matter how hard business owners try, employees still fear catching coronavirus. As a result, some are refusing to return.

So, what rights do employers have in a situation like this? Can employees be disciplined for staying at home? And how can they be encouraged to return to work?

Let’s find out…

What does the law say about absence?

Disciplinary action or even dismissal are not uncommon if an employee refuses to attend work. That’s because unauthorised absences count as a breach of contract. However, as you’re well aware, current circumstances have blurred the lines. So much so that even the law is unclear. 

Section 44 of the Employment Rights Act 1996 protects workers who leave work or refuse to return when they have a reasonable belief there’s a ‘serious or imminent danger’ to their safety.

The question is, would COVID-19 class as ‘serious or imminent danger’ under Section 44? As of yet, there’s no clear answer, and it will largely depend on the person.

What about pay?

Simply put, you don’t need to pay employees who refuse to return to work. That said, it’s going to be hard to force them to come back when they’re worried about their safety. If you discipline or dismiss someone who feels endangered, you could risk a tribunal claim and a hefty pay-out.

So, instead of steps like this, let’s look at ways you can encourage them to get to work…

Involve employees in risk assessments

Reopening your workplace safely requires you to have updated your risk assessment to include coronavirus risks and hazards. You then need to look at ways the virus might spread at work and establish processes for getting rid of the risk or controlling it. 

In doing so, it might be useful to ask your employees if there are any specific safety steps they’d like you to take.

For instance, some employees might feel safer working staggered shifts to avoid cramming onto public transport at rush hour. Staggered breaks would also free up communal spaces.

Involving employees in your risk assessments helps show them that you’re taking their concerns seriously. Not only that, it gives them more control over the environment they work in.  

Share your safety measures with employees 

Once your new risk assessment is complete (inclusive of safety steps), share it with your employees to reassure them that the workplace is safe. 

You could do this by sharing a paper copy of the assessment or a short smartphone video of your workplace so they can see the safety steps in action.

If your workers can physically see the changes you’ve made, they’ll feel more comfortable about coming back to work.

Support your employees' mental wellbeing

The coronavirus, lockdown, and the general uncertainty of it all has been a scary experience for everyone. 

If your employees weren’t already worried about their own health, they’ll have worried about a high-risk friend or relative. They’ll also have seen news reports on recessions and redundancies the world over. Some may have even spent lockdown on their own.

To help your workforce feel better about returning to work, and their mental health in general, you may want to offer an Employee Assistance Programme (EAP).

An EAP gives your employees access to 24/7 telephone advice, face-to-face counselling, and online tools to help them stay happy and healthy.

EAPs can bring big benefits to your business, too. Studies show that an EAP can reduce mental health-related absence levels by as much as 45% and improve productivity by as much as 8%.

To learn more about how an EAP can benefit you and your workers, visit Peninsula’s guide to EAP & employee wellbeing services today.

Need our help?

For further complimentary advice on this issue from an expert, call us any time day or night on 0800 917 0771 or request a callback here.

Suggested Resources