What if an employee refuses to return to the office, now that there is no longer any guidance that states we must work from home?
Where an employee refuses to return to work with no apparent valid reason, a recommended approach is to seek to understand the employee’s reluctance.
It is important to be sympathetic to any concerns raised and try to resolve the employee’s concerns to protect the health and safety of the individual (for example, by offering them flexible working or allowing them to take holiday or unpaid leave). Employers should ensure that they document any decision-making process.
If the employee can work from home, this may well resolve the issue. If the employee cannot work from home, you will need to consider:
- Why it would not be possible;
- What the current public health advice is;
- the specific reason that the employee is concerned about attending work;
- It should be considered whether it would be discriminatory to:
- refuse home working;
- take disciplinary action; or
- withhold pay in light of the employee’s refusal.
Be mindful that severe anxiety could amount to a disability under the Equality Act 2010
2. Can I take disciplinary action against an employee who is refusing to return to the office?
Taking disciplinary action for a refusal to return to work presents risks where employees have more than two years’ service and therefore the ability to claim for unfair dismissal. Employers will need both a fair reason to dismiss and to follow a fair procedure prior to dismissal. It is unlikely that a dismissal for gross misconduct due to unauthorised absence will be considered to be fair if the employee has legitimate concerns about returning to work and/or you have failed to take steps to understand and remedy those concerns.
Furthermore, where specific concerns have been raised, you should also consider whether they satisfy the definition of a qualifying disclosure for the purposes of a whistleblowing claim. If so, then the employee would be protected against suffering a detriment and/or a dismissal related to the disclosure. Employees do not need a minimum of two years’ service to bring a whistleblowing claim.
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