Coronavirus legal support hub

Employment advice during Covid

The challenges of the Coronavirus pandemic continue to change on a daily basis. Our employment advice aims to provide you with all the latest news and information on your legal rights and issues to support you through this challenging situation.

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Can an employee refuse to return to the workplace?

Yes, but only in certain circumstances. An employee may have legal protection from any detriment, including dismissal, if they reasonably believe that returning to the office would put them at risk or serious and imminent danger. Any such belief has to be ‘reasonable’ but of course opinions on this can vary strongly.

Employers should consider any refusal to return on a case-by-case basis, taking into account if the employee:

• Is clinically vulnerable or unvaccinated or lives with someone who is.
• Suffers from mental health issues such as anxiety.
• Has other higher risk factors, for example a physical disability or pregnancy.

Even if an employee does come within one of these categories, this does not mean a refusal to return to work will necessarily be reasonable, but employers should give this careful consideration. This may involve carrying out a risk assessment, which should certainly be done for any pregnant employees as a matter of course.

Employers should also be aware of possible claims around discrimination, especially where an employee is disabled. Employers are legally required to make reasonable adjustments for disabled employees; in some cases, allowing an employee to work from home may be considered a reasonable adjustment.

What can I do if an employee refuses to return to work?

If an employee does not have a valid reason to refuse a return to work and their employment contract requires them to work at a certain location, you may be justified in taking disciplinary action should the employee refuse to do so.

You would have to follow your disciplinary procedures for a failure by the employee to comply with their contractual obligations. The safest approach would be to seek legal advice first.

Can disciplinary action be taken against an employee refusing to return?

If an employee does not have a valid reason to refuse a return to work, they have a contractual obligation to return to their previous position in their usual place of work. You must provide the employee with reasonable notice.

As a result, an employer will be justified in taking disciplinary action should an employee refuse to do so. You must follow your disciplinary procedures for a failure to follow reasonable instructions or for absence from work. We would however recommend caution in disciplining employees who refuse to return to work, and potentially seeking legal advice on your specific circumstances.

Do I need to pay staff who are self-isolating?

Employees who have been advised to self-isolate will be entitled to SSP from the first day of sickness absence (if they meet qualifying conditions, such as a minimum level of earnings). Employers with fewer than 250 employees will be able to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence. Do ensure your sickness recording processes distinguish between absences related to COVID-19 and absences for other reasons.

Can I reduce my employee’s pay or introduce short time working?

Only if your employment contracts allow you to do this or your employees agree.

Can I make redundancies?

It is your choice whether to make redundancies or whether to furlough employees, although the availability of furlough may be one factor that is considered if an unfair dismissal challenge is brought. You should therefore ensure that you have a good reason for dismissing an employee (which might e.g. be a reasoned assessment that your requirement for this role will have ceased / diminished for an extended period, not just on a temporary basis) and follow a fair process. You will also need to pay statutory redundancy pay to those employees with more than 2 years’ service who are made redundant. The process is considerably more complex if 20 or more employees are at risk of losing their jobs in the same place and you should consider seeking legal advice.

At Tozers our Employment Team have put together a fixed fee Employer Redundancy Pack to help you if you may be thinking about making redundancies.

Can I force workers to take annual leave?

Yes. Workers do not necessarily have the right to choose when to take their holiday and under the Working Time Regulations 1998 you can tell workers when to take leave. However, you must give the worker notice to take holiday that is at least twice the length of the holiday you are requiring them to take (i.e. you must give two weeks’ notice for a one week holiday, four weeks’ notice for a two week holiday etc.)

GET LEGAL ADVICE AND SUPPORT

Contact our legal experts

At Tozers our specialist solicitors have the experience and expertise you need. With legal experts working in specialist fields across commercial, personal and specialist sectors. Call us now on 01392 207 020 or contact us online.