Article written by Simran Lalli, Solicitor, Employment department
With Government guidance to work from home where possible now lifted, employers can plan a return to work for employees – many of whom having been working from home for a considerable amount of time. Employees, however, may have different plans. Many people are likely to still have concerns about the spread of COVID-19, particularly in workplaces where they will spend the majority of the day in the company of others. Employees may feel particularly unsafe if they are unvaccinated, medically vulnerable, or they are living with a person who is vulnerable. In this article, we look at whether employees can refuse to return to work, and the steps employers should take where this issue arises.
Does an employee have a legal right to refuse to return to work?
Yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees 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.
Under sections 100(1)(d) and 44(1A)(a), employees have specific protections where they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.
If an employee refuses to return to work, and they reasonably believe doing so would pose a serious risk to their health and safety, it can be unlawful to discipline the employee and dismissal could result in an unfair dismissal claim against the employer.
Will these protections extend to all employees?
In practice, it is likely that this protection will only extend to those who have a particular reason to hold these beliefs. Those who are clinically vulnerable or unvaccinated may be much more at risk than other employees. It is also likely that the protection would extend to those who live with someone who is clinically vulnerable or unvaccinated.
In addition, employees with mental health issues such as stress or anxiety may also believe that returning to work and concerns about risking exposure to the virus may also pose an imminent and serious risk to their health and safety.
Employers must also be mindful that employees who suffer from long-term physical or mental illness, have a disability or who are pregnant have additional protections under the law. Disciplinary action or dismissal against any such employee may amount to discrimination.
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. However, you must provide the employee with reasonable notice.
An employer will be justified in taking disciplinary action should an employee refuse to return to work. Employers must follow their 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 it is advisable to seek legal advice on the specific circumstances.