Can I force my employees to return to the office when they have been working from home?

With the UK entering its third national lockdown, it is clear that many employers will have to maintain homeworking arrangements well into 2021. There is hope however, that as vaccines continue to be distributed throughout the country this will be the final national lockdown the UK will have to endure. With that slightly optimistic thought in mind, some employers may have begun to look towards the future and how their workplaces will be structured post-pandemic. While some employers plan to continue with some level of homeworking, others may be eager to return to more traditional office based working arrangements. Our Employment Law team today discuss some reasons employees may refuse to return to the office, and how employers can address those refusals.

Health and Safety concerns about returning to the workplace

If an employee refuses to return to the office, their refusal may be regarded as a refusal to comply with a reasonable instruction or an unauthorised absence. In this case you could deal with the employee according to your disciplinary procedure and potentially dismiss them for misconduct. However, you should be extremely careful where the employee has refused to return to the office due to a health and safety concern.

Under ss 44 and 100 of the Employment Rights Act (ERA), an employee is protected from detriment and dismissal if they refuse to return to the workplace because they have a genuine and reasonable belief that there is a serious and imminent danger to their health and safety.  If an employee can show that they were dismissed for this reason, their dismissal will be automatically unfair and the potential award that may be granted by a tribunal is uncapped.  For the ERA to apply, the employee’s belief must be reasonable, and reasonableness depends on the circumstances of the individual employee.  For example, an employee with underlying health conditions or an employee who is pregnant may have more concerns than an employee without those additional risk factors.

As an employer, you have a duty to take all reasonable steps necessary to protect the health and safety of your workforce.  Before requiring employees to return to the office, you should conduct a risk assessment of your workplace.  You should consult with trade unions, health and safety representatives, and individual employees where appropriate and invite them to identify their concerns and suggest possible remedies. Your office may already have Covid-related health and safety measures in place, but these may need to be adjusted to help reduce the risks identified in your risk assessment. Such measures will depend on each employer’s unique workplace but may include:

• Requiring masks be worn in the office;
• Social distancing;
• Staggering employees’ return to the office;
• Increased cleaning / providing sanitary wipes at frequently touched areas.

It is advisable to clearly communicate to your employees the steps you have taken to protect their health and safety and give them the opportunity to offer feedback and suggestions.  If, after taking all reasonable steps to protect workplace health and safety, an employee still refuses to return to the workplace it is possible that their belief in imminent danger will not be considered reasonable. If that is the case you could take them through a disciplinary procedure in accordance with your disciplinary policy, or alternatively place them on unpaid leave.

However, you should remain cautious if the employee has underlying health conditions that could amount to a disability under the Equality Act 2010.  In that case, not allowing the employee to work from home may amount to a failure to make reasonable adjustments which could lead to a discrimination claim.  Similarly, if an employee has other protected characteristics, for example if they are pregnant, you will need to manage the situation carefully in order to limit the risks of a discrimination claim being raised by the member of staff.

Flexible working considerations

Some employees may feel safe in the office but simply prefer to work from home.  When this is the case, employees may ask to make working from home arrangements permanent via a flexible working request. Employees with twenty-six weeks continuous service have a right to make a flexible working request once every twelve months. 

When faced with a flexible working request, you do not need to agree to the request but you must reasonably consider it.  Discuss with your employee why they are making the flexible working request and how it will affect the business. Consider whether their request is connected to a disability. If it is, homeworking may be a reasonable adjustment and refusing it may give rise to a discrimination claim.

A flexible working request may only be refused on one of the following grounds:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods that you propose to work; or
• planned changes.

If your employee has already been successfully working from home you may find it difficult to argue that homeworking cannot be continued.  However, it is possible that as restrictions are lifted some new challenges may emerge.  For example, you may find that work for your company starts to pick up post-pandemic, and that employees struggle to keep up with the workload when working from home.  You may therefore still want to agree to a trial period with the employee to help you identify any challenges with homeworking that could justify a refusal.  Alternatively you could attempt to reach a compromise with your employee, such as allowing them to work from home for part of the week.

We may be almost a year into the pandemic, but it is clear to see that there are still challenges arising for employers with each twist and turn we are thrown.  If you have any questions regarding flexible working requests, Covid-19 risk assessments or potential health and safety at work issues, you can discuss this with the Employment Law team by contacting 023 8071 7717 or emailing employment@warnergoodman.co.uk. 

In order to stay up to date with the regular changes announced by the Government and to receive unlimited advice from the experienced team, you may wish to consider Peace of Mind for your business and HR needs.  Alternatively, o receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.