What happens if an employee refuses to return to work?

11 June 2020
As we see the global economy take its first steps back to recovery, businesses may be concerned that some of their employees will be reluctant to return to work for a multitude of reasons. As an employer, you can support your employees, but there will always be some individual cases that presents a challenge.  
What should employers consider when preparing return-to-work plans?

To protect the safety of employees and prevent the risk of employment liabilities, employers need to ensure compliance with their relevant obligations under the applicable in-country health and safety legislation, as well as adhering to all coronavirus-specific government published guidelines.
In cases where businesses are permitted to reopen, employers should allow employees to continue to stay at home if they are medically vulnerable, shielding, or self-isolating due to displaying coronavirus symptoms. It is best to carry out individual risk assessments in these specific cases.

Additionally, employers should consider continuing to allow employees to work from home where they have childcare responsibilities until schools and nurseries are fully operational in the country where employees are based. Employees may have difficulty returning to the office while their usual childcare arrangements are not fully available.

With many jurisdictions operating robust discrimination legislation, companies should take careful decisions with regards to the selection for returning to work, and therefore this should be based on objective business reasons to avoid discrimination risks.

Finally, global authorities are lifting lockdown provisions on a phased basis, at different times, depending on the impact locally within specific countries. Therefore, employers must ensure they do not apply a ‘one size fits all’ approach to returning to the office as each country regulations need to be followed to ensure the employer remains compliant. 

However, what happens if an employee refuses to return? 

Some employees will be worried about coming back to work (either from a time not working under the relevant local government scheme or after a period of working from home) and may refuse to do so. Employers should manage such concerns sensitively, and seek to understand the underlying reasons on an individual basis. As well as the duty of care to take reasonable steps to protect the health and wellbeing of their employees, employers should be aware of their responsibility not to victimise those who have raised genuine health and safety concerns. These could be protected under the whistleblowing legislation as well as specific provisions in health and safety cases.

As an employer, you should give your employees a clear route to raise any concerns that they may have. Employees may reach out to their line managers or, where not possible, to HR, to express their concerns.

Once you have established a return to work strategy and communicated this to all employees, how do you manage an employee who still refuses to return to the office? Below are a few examples of initial issues employers may consider:

  • Can the employee still work at home and be fully effective in their role? What are the possible downsides and impact for the business of the employee not returning to the workplace?
  • Is the employee's refusal to return to the workplace genuine? 
  • Are they a vulnerable employee or live in a house with a vulnerable member or with someone who is shielding?
  • Do they have, or could they have mental or physical health issues which may be preventing their return?

It is essential to communicate with the employee to fully understand their concerns and weigh up the relevant issues when deciding whether or not it is appropriate for the employee to return to the workplace. You should seek specific advice in each case. Where a decision is taken to delay an employee's return to the business, then some of the following options may be applicable, for example:

  • Can the employee effectively be put on a government scheme leave for the interim while the decision is under careful consideration before any action is taken?
  • Could they be redeployed within the business, either temporarily or permanently?
  • Would they be open to a flexible working arrangement? Return to work gradually, commute outside of the rush hour, work around schooling, etc.
  • If mental health issues are a concern, look to provide them with all the support necessary to help them adjust and possibly return to the workplace when feasible. We can provide additional guidance on Employee Assistance Programs (EAP).
  • Consider a new contract with reduced hours following the necessary notification and consultation process.
  • Consider agreeing a period of unpaid leave following the essential notification and consultation process.
  • Consider permitting the employee to use up their annual leave entitlement. 
  • Consider withholding pay. In this case, we would always advise that you seek legal advice to avoid any breach of contract/unlawful deductions claims.

As a last resort, some jurisdictions may permit termination of employment. Before proceeding, get advice on the risks of any potential terminations and how to follow a fair termination process in-country to minimise the perils of an unfair dismissal claim. 

Line managers may well benefit from additional support and training on how to conduct difficult conversations with employees. Often, these conversations are essential to the organisation's performance, as well as to the benefit of the employee. Careful consideration of the subject matter and the recipient of the conversation is time well spent before any discussion takes place.

In summary, employers should consider any necessary adjustments, health and safety measures applicable in-country, and the wellbeing of employees before considering any move to terminate employment.  

Our HR and Employment Advisory teams are experts in handling difficult conversations, and we can provide you with additional assistance if needed.