When your employees refuse to come back to work: what's the law?
COVID-19 has created all sorts of unprecedented challenges for employers. Now here’s another one: now that people who can’t work from home are allowed to return to the workplace, what if they refuse to?
In normal times, an employee refusing to come to work would be a firing offence. In today’s climate, they may have a point – and employers who push them too hard may wind up on the wrong side of the law themselves. So what can you legally do if your workers won’t come back?
Look at individual circumstances
First of all, understand why your employee is refusing to come back. Once you fully understand their reasons, hopefully you can work around them.
It’s also worth gauging the employee mood through surveys before reopening your workplace, and making plans in light of the responses you get.
Basically, it all comes down to reasonable and appropriate behaviour – and there’s no one definition of that. Which brings us to:
Don’t take a blanket approach
This is no time for ‘one size fits all’ approaches. For some people, this return to work is genuinely going to be a huge challenge. Have you factored in everything they’re dealing with? This could be underlying health conditions, a lack of childcare, or living with someone who is shielding. If there are serious health and safety concerns around their returning to work, you’re unlikely to be legally free to fire or discipline them.
If you do discipline – proceed cautiously
Balancing employer and employee rights in the current circumstances could leave you on wobbly legal ground. Your rights don’t (and shouldn’t) include forcing your employees to return to work to the detriment of their health and safety. Don’t rush to discipline, especially if the employee is refusing to come back because of personal circumstances.
Make a well-informed decision
Having said all that, if you’ve done everything you can to make your people safe, and followed all the government guidelines, and someone is still refusing to return, they may not have reasonable grounds. ‘I don’t wanna’ is not reasonable grounds for refusal, and you could have the legal right to discipline them. as long as you think carefully about it first.
Watch out for whistleblowers
Be aware that if you pressure employees to return to work in a way that isn’t safe or feasible for them, they might exercise their whistleblowing rights and tell the world about it. To avoid this, make sure you do a proper risk assessment and implement measures accordingly.