Workplaces are reopening, but coronavirus hasn't gone away. Staff may remain reluctant or unwilling to return. Here we go through some of the concerns they may raise and how to deal with them.
To avoid any disputes, genuinely consider all objections. Put everything in writing. If necessary, make further enquiries to confirm or establish facts. Two key principals should guide your decisions:
- Protecting staff with medical conditions that mean, or may mean, they're at greater risk to/from infection. You're ultimately liable for their wellbeing.
- Following government guidance allowing all staff to work from home, where possible.
Using a grievance procedure
Any objection should be treated as a grievance. Acas say their code of practice, which you can follow alongside your own grievance procedure, still applies. However, consider whether you can do so fairly in the current situation. In particular:
- Consider the health of everyone involved in the procedure.
- You must observe social distancing rules: this probably means using video technology. Do all those involved have access to it? Does anyone have a disability or other issue that makes using it difficult, and if so, can you make reasonable adjustments?
- Avoid involving individuals who are currently furloughed, unless you're making use of new flexible furloughing rules (after 1 July).
- Will any necessary information (e.g. medical evidence) be obtainable?
Go through the options with all those involved. If you decide to proceed, put your reasons why in writing.
There's a grievance procedure in our Employee Handbook, if you don't have one.
Employers in Scotland are expected to follow the principles of the Fair Work Convention's Framework, for all decisions.
Legal protection for employees
Employees (rather than other staff types, e.g. workers) are legally protected from suffering any detriment (e.g. not getting full pay) due to risks to their health and safety: in particular, if they believe there's a serious and imminent danger if they return to work. This can include danger caused by customers or other staff not following the rules, or by the risks of commuting on public transport.
It doesn't matter if you disagree – their belief (from their perspective) just needs to be reasonable. This would ultimately be judged by an Employment Tribunal, if things got that far – if successful, the tribunal could rule that, for example, they were entitled to stay at home on full pay rather than unpaid leave.
If you've followed all of the government's safety advice and can prove you have robust health and safety measures in place, the employee's belief is less likely to be reasonable. However, each case will depend on its own specific facts – e.g. if the employee has a particularly anxious character or you haven't properly communicated the safety precautions.
Keep this in mind when dealing with objections from your employees. They could use it to make unfair dismissal claims, no matter how long they've worked for you. If an employee raises the protection with you, or if you want to check your position generally, seek legal advice. Note that the law wasn't made with the pandemic in mind, so it's unclear how a tribunal will apply it.
Extremely vulnerable staff
UK government guidance for England states that extremely vulnerable people (i.e. those who have been told to 'shield' at home) are "strongly advised not to work outside the home". Terminology and advice in the other UK nations is broadly similar.
Requiring such staff to return to the workplace would be a considerable liability risk. If they can't work from home, keep them furloughed, or put them on sick leave (if they have a suitable medical letter stating they should remain at home). You could potentially give them work to do at home that's not their usual work, but the terms of their contract might mean you need their agreement.
The UK government is encouraging other vulnerable staff employed in England to return if they're offered the safest available on-site roles and can stay 2 metres away from others at all times. This could involve adjusting their working times or duties.
There's leeway if some time has to be spent within 2 metres of others – you must assess the level of risk, and that level must be acceptable to both you and the vulnerable staff.
The other UK nations are so far taking a more cautious path and have stopped short of encouraging such staff to return.
If vulnerable staff don't want to return, consider letting them remain furloughed or take unpaid leave. If they want to return but you want them to stay at home, they'll be entitled to full pay.
Both extremely vulnerable and vulnerable staff could have a disability that's recognised under Equality Law. If they do, you're legally obliged to make reasonable adjustments. This probably includes letting them stay at home, though whether or not that means doing so on full pay is unclear. It's also possible that requiring vulnerable staff to return could amount to indirect discrimination – this can be justified, though it's likely to be difficult.
Staff living with someone who's extremely vulnerable or vulnerable
Government guidance for businesses in England states that "particular attention should also be paid to people who live with extremely vulnerable individuals". What this means in practice isn't clear.
If you need them to return, take the same precautions that you would for vulnerable staff. If they don't want to return, consider letting them remain furloughed. Otherwise, suggest unpaid leave.
Again, remember that the person with whom they live may have a disability that's recognised under Equality law – take care here, as you can't treat staff less favourably than others based on the disability of someone they're associated with (you can read more about this in our Employment law guide).
Staff with other potentially dangerous health conditions
Someone could have a health condition that isn't listed as extremely vulnerable or vulnerable, but which the person claims is still potentially dangerous if they catch coronavirus.
If the condition is recognised as a disability under equality law, consider the advice above.
If it isn't, you don't have to make adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.
If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, take the same precautions that you would for vulnerable staff.
If you both believe it may not be safe for them to return, keep them furloughed or suggest unpaid leave.
Staff suffering from anxiety
Some staff are likely to be anxious about returning amid coronavirus. Depending on the severity, anxiety can be a recognised disability. If so, they'll have a right to reasonable adjustments, which should entitle them to remain at home on furlough, sick leave or unpaid leave. Sick leave should be used if they're experiencing stress/anxiety at levels that mean they can't work.
Even if their condition isn't classed as a disability, consider delaying their return – they're unlikely to be productive in the workplace, and could be a disruptive influence.
Staff without childcare
With workplaces re-opening before schools, this will be a common problem. They can either remain furloughed, or – if you can offer it – work flexibly.
There are other options available only to employees:
- Unpaid parental leave: they can take leave of up to 4 weeks for each child per year in blocks of at least one week. They must give you at least 21 days' notice. This entitlement applies after a year of working for you. You can be flexible about how much leave they take or notice they give you: put any changes you agree in writing.
- Unpaid dependent care (or emergency) leave: they can take a reasonable amount (usually one or 2 days) of time off to take necessary action to look after their child. It's available no matter how long they've worked for you.
If none of the above is suitable, consider letting them take unpaid leave.
Note that you could be liable for sex discrimination, as a recent survey found that women have taken on the majority of childcare duties during the pandemic. Ensure that decisions are fair and consistent, unless you have a good business reason for different treatment.
Members of the BAME community
Current medical evidence suggests that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19. The government has not so far produced any information on what extra measures are needed to protect them, except to say that you might need more emphasis on workplace social distancing and hygiene rules.
If such staff don't want to return, consider leaving them furloughed or letting them take unpaid leave.
If they do want to return, take the same precautions that you would for vulnerable staff.
To avoid potential liability under race discrimination laws, ensure that your decisions are fair and consistent, unless you have a good business reason for different treatment. Taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination – however, it is likely to be justified on the basis of the current medical research.
Staff who must use public transport
It's currently unclear if you'll be responsible for the health and safety of staff who must use public transport to commute to work.
You owe employees an unwritten duty of trust and confidence. You mustn't do anything to break this, which may include forcing them to take a risk and travel by public transport. They could resign and claim unfair (constructive) dismissal. However, this is so far untested in court.
Remember you have to make reasonable adjustments for staff with recognised disabilities, and carry out special risk assessments for those who are pregnant or new mothers – all of these situations require you to take travel into account.
The UK government has published guidance on how to travel safely using various forms of transport. It includes a checklist of how to plan a safe journey. Share this with staff, in case they haven't read it.
Consider any possible options that might help them avoid public transport, such as:
- giving them access to bikes or e-scooters
- fitting more bike storage points
- making more car parking spaces available.
If there is no other choice but to use public transport, try to let them alter their hours to avoid busy times. If possible, offer them personal protective equipment, e.g. masks, gloves.
If you can't persuade them, consider letting them remain furloughed or take unpaid leave.
If staff object for some other reason and you don't feel it's justified, write to them and tell them the reasons why you disagree.
If their objection was raised using your grievance procedure, inform them of their right to appeal your decision. Otherwise tell them they can raise a formal grievance using your grievance procedure (if they qualify).
Reassuring reluctant staff
Try to reassure or help them to return, though this will depend on what you can reasonably do. E.g.:
- If you haven't already, show them a copy of your risk assessment and what action you've taken to make the workplace COVID-safe.
- Give them evidence of the safety changes that've been made to the workplace: videos and photos of the changes, or a training session on any new procedures.
- Ask if they'd like to speak to a colleague who's already returned.
- If it's relevant, offer temporary flexible working arrangements (such as earlier/later start-finish times).
- Offer another safe site they can work at.
- Offer them a safer role than their present one to do in the meantime.
If you agree changes to working conditions that affect the usual terms of their contracts, even for a temporary period, confirm it in writing. You can use our Statement of changes in terms of employment to do this.
Staff who refuse furlough or unpaid leave
If nothing you do convinces staff to return, a risk-free solution is to re-furlough them. If they don't qualify or agree, you could:
- ask or require them to use their annual leave;
- if they're an employee, use lay-off or short-time working; or
- put them on unpaid leave.
Unless the terms of their contract or a previous furlough agreement says otherwise, neither of you have to agree to any of the above.
If you can't agree, you may have to issue a management instruction for them to return to the workplace. If they continue to refuse, consider starting disciplinary action against them (unless they're self-employed), warning them that continuous refusals may result in their dismissal.
If all other options fail, redundancy may be the only alternative.