In February 2022, Prime Minister Boris Johnson announced the removal of all remaining COVID-19 legal restrictions. Employers who have not yet done so may now consider the time is right to return staff to the workplace. Employees, however, may have different plans, particularly if they have been working from home for some time. A significant number of them may still have concerns about the spread of COVID-19, particularly in workplaces where they will spend most of the day in the company of others, or if they have to use public transport to get to work. But can employees refuse to return to the workplace, and what should employers consider if this issue arises?
Is there a legal right to refuse to return to the workplace?
Yes, but only in limited circumstances. Legislation grants workers a legal right to stay away from their workplace where they have a reasonable belief that it would put them at risk of serious and imminent danger which they could not be reasonably expected to avert.
There are specific statutory protections for staff if they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.
If an employee is dismissed for refusing to return to the workplace in the circumstances covered by statute, an employer risks a Tribunal deeming the dismissal automatically unfair, and awarding the employee uncapped financial compensation.
In Quelch v Courtiers Support Services Ltd ET/3313138/20, compliance analyst Mr Quelch was found to have been automatically unfairly dismissed for refusing to return to the office. In March 2020, he had explained to his manager that his cohabitee was clinically vulnerable, and it was agreed that he could work from home. Courtiers considered its staff were critical workers, so required them to make a phased return to the office from May 2020. Mr Quelch refused. He repeatedly raised health and safety concerns, including about sharing an office with colleagues who have school-aged children (which would increase his exposure to contacts outside his home) and that his employer was not complying with Government guidelines. Courtiers warned Mr Quelch that a failure to return to the office would result in disciplinary action, and ultimately dismissed him for gross misconduct.
Mr Quelch brought a number of Employment Tribunal claims against his employer. In upholding his automatic unfair dismissal claim, the Tribunal considered that Courtiers had failed to follow the Government’s guidelines that “Businesses… should make every reasonable effort to enable working from home as a first option”.
Employment Tribunal decisions are fact-specific, and so different circumstances can affect the outcome. In particular, the absence of Government guidance to work from home is likely to be relevant if similar facts to Mr Quelch’s case were to arise today.
Can disciplinary action be taken against an employee refusing to return?
It’s important to consult with the employee and find out why they are refusing to return. Is there a health and safety reason, or other special consideration?
Workers may believe that returning to the workplace and having an increased risk of exposure to the COVID-19 virus could pose an imminent and serious risk to their health and safety, leading to detriment claims if they are disciplined or their pay is withheld due to their refusal to attend the workplace.
Employers must also be mindful that employees could have protected characteristics, such as a disability or pregnancy, which give them additional protections under the law. For example, an employee with severe anxiety may explain that their condition would be exacerbated by a requirement to travel to the office. Here, an employer should seek medical advice. If the employee is found to be disabled, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages faced by the employee. Reasonable adjustments may include allowing the employee to continue working from home or changing the employee’s hours to avoid travelling at peak times. If, instead, an employer simply disciplined such an employee, it could face discrimination claims.
Given the risks to employers, we would recommend caution in disciplining employees who refuse to return to the workplace. It would be sensible to first obtain legal advice based on the specific circumstances involved.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.
