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Aidan Loy

No Going Back?

Added by Berlad Graham
December 22, 2020

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Throughout this year, those lucky enough to still have a viable business will have been welcoming staff back from Furlough or agreed lay-off or re-employing former staff. Obviously, risk assessments have been carried out in the premises and it has been made as ‘Covid safe’ as it is possible to do. But still some staff refuse to return. Before starting on a disciplinary path, it would be well to consider why they are doing so, what arguments they could potentially bring, and how best to obviate them.

  1. Sickness. If an individual is ill on the date of return, then the normal sickness rules (statutory and contractual) apply. The exception is if the sickness is related to COVID-19 (if they or someone in their household has the disease or are exhibiting symptoms), or if they have been told by a medical authority to self-isolate, then it is still treated as sickness, but up to two weeks SSP can be reclaimed.
  2. Childcare. With differing national and regional rules governing school attendance, a one-size fits all approach is impossible to declare. If an employee refuses to return because of childcare concerns they can be required to take (unpaid) dependants leave. However, in this, as in all cases, one should give thought to potential discrimination issues (see below).
  3. Health & Safety concerns. Having proofed the premises, it may not be accepted by all. That is not a valid excuse for not returning but complaints (over actual breaches, not mere concerns) can elevate a complainant to the level of one asserting a statutory right or a whistle-blower, with the protective rights they enjoy. So, in all cases one needs to examine the complaint in the first instance. In most cases it will be unfounded.
  4. Vulnerable individuals. The rules differ depending upon when one is classed as ‘clinically’ or ‘extremely’ vulnerable. Clinically vulnerable individuals are those assumed predisposed to suffer disproportionally from Covid. Such individuals include those with a weakened immune system, an underlying health condition (asthma, diabetes), are over 70, pregnant, obese. For these individuals, a refusal to return is not allowed, but a competent employer should reassure themselves that all has been done to safeguard such individuals, including enforcing social distancing. Extremely vulnerable are those who have been told by a medical authority to shield themselves because of the enhanced danger presented by a pre-existing condition. This group should be furloughed or left on sick pay unless it is declared medically safe for them to return to work. Those who are clinically vulnerable should return to work when requested, provided it is safe to do so.
  5. No Substantive Reason. The most usual given for not returning, usually claiming that the employee lives with a vulnerable person. In most cases that will be insufficient to refuse to return, assuming that all has been done to make the workplace safe.

If faced with a refusal to return, then the choice will usually be between unpaid leave, or disciplinary action. In the fluid place we are, it is not possible to give a hard and fast answer in all cases. If in doubt, seek advice! In general terms, objections and claims will probably come (other than those specific ones outlined above) under the following heads:

  • Discrimination. Those required to return may well claim discrimination, based upon a disability, or pregnancy, which may or may not be relevant. Similarly, an individual living with such a person may claim discrimination via the Equality Act by association with the disabled individual.
  • Assertion of a Statutory Right. Any action taken against an individual who has already asserted a statutory right (a complaint about furlough being imposed, not agreed, and hence deduction from wages?) and is subsequently dismissed can claim automatic unfair dismissal (with necessary service). So again, check and seek advice.
  • Illegal activity. Reports of wrongly conducted furlough, complaints to HMRC can also constitute the above, so care must be taken.

If any of the issues discussed are, or are likely to be, a concern, please do not hesitate to contact the author. Contact details below.