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Can employers fairly dismiss employees who do not return to the workplace?

Schools re-open this week, and the government is encouraging employees to return to the workplace. The Telegraph has quoted ministers and Government sources saying that people who work from home will be more prone to be dismissed.

Employers should be mindful of the employment law implications when considering whether it should terminate the employment of those employees who refuse to return to the office and continue to work from home. Sejal Raja, Head of Employment at RadcliffesLeBrasseur considers the issues from an employer’s perspective.

Employees who have more than two years’ service have the right not to be unfairly dismissed. An employer who is considering terminating an employee’s employment will need to first have a fair reason for dismissal. There are five fair reasons for dismissal:

  • Conduct
  • Capability
  • Redundancy
  • A legal restriction; and
  • Some other substantial reason.

In addition, the employer should undertake a fair process before taking any steps to dismiss, which may include an investigation but a meeting is necessary to allow the employee an opportunity to provide their feedback before the employment is terminated.

Employees who do not have two years’ service could bring a claim if they are able to establish that the reason they were dismissed was because he or she refuses to work in an unsafe environment, because the workplace is not safe, they have been subject to discrimination, or has blown the whistle on unsafe or illegal practices by the employer.

The starting point for an employer is to ensure that the workplace is safe. Employers owe a duty to provide a reasonably safe system of work and to take reasonable care for the safety of their employees. In addition, they are bound by the implied term of trust and confidence. For both reasons, employers will need to take steps to make their workplaces safe for individuals to return. Click here for our recent briefing on how to do this.

If employees are of the view that their employer has not gone far enough to protect their well-being they may resign and bring a claim for constructive unfair dismissal. In addition, employees may argue that because they had raised concerns about the employer’s failure to provide a safe working environment, they could seek to argue a claim based on protected disclosures (breach of health and safety legislation).

If employees have been asked to return to work and do not do so what can an employer do in these circumstances?

There are a number of steps that an employer should take. Firstly, consult with the employee to understand why he or she is reluctant to return to work and consider whether the concerns can be alleviated. Bear in mind that employees may have been working from home for the last five months and you will need to explain why there is now a requirement for employees to return to the office. If despite providing assurances and alleviating the concerns, the employee still maintains that they are not willing to return, then you can consider termination of employment but this should be a last resort and legal advice should be obtained.

Further, in the context of imposing a requirement to return or just managing those who do return, there may also be discrimination issues.  The following should be considered to avoid a claim for discrimination:

  • Understand and consider the circumstances of those with different protected characteristics.
  • Involve and communicate appropriately with workers whose protected characteristics might either expose them to a different degree of risk or might make any steps you are thinking about inappropriate or challenging for them.
  • Consider whether you need to put in place measures or adjustments to take account of your duties under the equalities legislation.
  • Make reasonable adjustments to avoid disabled workers being put at a disadvantage and assess the health and safety risks for new or expectant mothers.
  • Ensure that the steps you take do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.

Those with certain disabilities, may be particularly vulnerable to Covid-19 which would give rise to a duty on the employer to make reasonable adjustments. A requirement to return to work would be a provision, criterion or practice. To the extent that such a requirement places a disabled person at a substantial disadvantage – which might well be the case where that person was at greater risk from the virus – then the employer would be under a duty to make reasonable adjustments, which may include working from home.

Employers will need to ensure that it considers the facts of each case very carefully otherwise it could be subjected to claims of unfair dismissal, constructive unfair dismissal, breach of the whistle-blowing legislation and discrimination.  If you require assistance, please contact Sejal Raja on sejal.raja@rlb-law.com.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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