Employees who refuse to return to work: The risks & pitfalls

As businesses reopen, employers are beginning to consider the prospect of some employees being reluctant, or even refusing, to return to the workplace. Initiating disciplinary or dismissal proceedings against employees who refuse to return on the grounds of concern for their wellbeing, could result in claims against employers in the Employment Tribunal.

Possible claims include whistleblowing, and health and safety detriment or dismissal claims under section 44 or section 100 of the Employment Rights Act 1996 (“ERA”) respectively.

Whistleblowing – does the refusal to work amount to a protected disclosure?

The employee must have a ‘reasonable belief’ that they were acting in the public interest (this does not mean there can’t also be an element of self-interest).

Whistleblowers have protection from detriment or dismissal (by virtue of s.47B / s. 103A Employment Rights Act 1996) for making a protected disclosure.

Health & safety detriment or dismissal

Section 44 ERA – the right not to be subjected to a detriment…and section 100 ERA – an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that:

  • In circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or
  • In circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.

This is a day one right (i.e. no two years’ service requirement) and an automatically unfair reason for dismissal.

The reasons for the refusal to return

In light of the above, before initiating any disciplinary or dismissal proceedings against employees, employers should first carefully consider the reasons for refusal i.e. concern for their own wellbeing; concern for the wellbeing of a vulnerable person with whom they live; pregnancy; and childcare issues etc.

If the employee can work from home, this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and crucially: whether it would be discriminatory to refuse home working, take disciplinary action/dismiss, or withhold pay in light of the employee’s refusal to return to work. For example:

Employees classed as disabled

If the reason the employee self-isolates is because of a disability (as defined by the Equality Act 2010 “EqA”) that puts them into a high-risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise. The fact that the employee does not fall within the prescribed list of clinically vulnerable and clinically extremely vulnerable people does not mean that they are not disabled and that they do not have protection from disability discrimination in this context. There may be employees suffering from other illnesses which amount to a disability in terms of the EqA and who are more likely than others to suffer serious illness if they contract COVID-19, so employees should be considered on a case-by-case basis.

Discrimination claims which could arise:

  • Indirect discrimination. There may be a case that the employer’s provision, criterion or practice (PCP) of requiring all employees to continue to attend work in a pandemic could be indirectly discriminatory against the employee and those who share the employee’s disability. In such a case, the employer should consider whether the PCP can be justified as a proportionate means of achieving a legitimate aim. As an example, an employer could indirectly discriminate by requiring all employees to continue to work in front line roles if that requirement has a greater impact on employees who are disabled, older or pregnant.
  • Discrimination arising from disability – Section 14 EqA 2020. 

Discrimination arising from disability occurs where both:

  • A treats B unfavourably because of something arising in consequence of B’s disability.
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Where an employee refuses to attend the workplace because of their disability and their employer treats them unfavourably because of this by not paying them or dismissing them for unauthorised absence, the employee could have a potential claim under section 15. The employer’s actions would be because of “something arising in consequence” of the employee’s disability (the employee’s decision to not attend/self-isolate). As no comparator is required in respect of a section 15 claim, it will not necessarily be a defence for the employer to argue that it would treat all employees who decide to self-isolate without medical instruction in the same way.

The employer may, however, escape liability if it can show that:

  • It did not know, and it was not reasonable for it to know, that the employee was disabled; or
  • Its treatment of the employee was a proportionate means of achieving a legitimate aim of, for example, maintaining staffing levels in its workplace to meet customer demand.
  • Reasonable adjustments. 

An employer may be liable for a failure to make reasonable adjustments if it does not facilitate a disabled employee’s request to work from home in a pandemic. However, where the employee’s role is not suitable for remote working, it will not necessarily be a failure to make a reasonable adjustment for the employer to not continue to pay a disabled employee who self-isolates before seeking medical advice. The EAT has held that the purpose of reasonable adjustments is to facilitate a disabled employee to remain in work, or to return to work. The emphasis is therefore on assisting the employee to work, rather than not work. 

Where an employer decides not to pay a disabled employee who self-isolates or refuses to come back to the workplace, it could potentially be argued that this is hindering the employee from “remaining in work” as few employees can afford to remain employed without pay for the duration of a pandemic. The EAT has, however, commented that the purpose of the legislation is not to treat disabled persons as objects of charity. It is therefore a matter of the employer being reasonable and logical in their approach. Where a disabled employee refuses to attend work because of the perceived increased risk because of their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution.

Employees who fall into a high-risk category in relation to COVID-19 but are not disabled

Some employees may fall into a high-risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an auto immune condition or who are pregnant, are at a higher risk of developing more severe symptoms. Not all of these individuals will fall within the formal public health guidance for the clinically vulnerable and clinically extremely vulnerable but the fact that the individuals are not identified as at higher risk in the UK’s public health guidance does not preclude them from protection in terms of discrimination law.

Such employees may wish to self-isolate, even before seeking medical advice. The ACAS guidance states that an employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave.

Employees who are anxious to return to work

An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. The ACAS guidance suggests that an employer could offer extra car parking where possible so that the employee can avoid using public transport, keep the employee on furlough if they are temporarily unable to work, or arrange for them to temporarily work different hours to avoid peak time travel.

If the employee’s anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay. Medical evidence will be needed in this regard.

Where an employee suffers from severe anxiety, this could amount to a disability under the EqA. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.

If there is no discrimination issue

If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence. If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

However, the context of the refusal to attend work would need to be closely considered before disciplinary action were taken. As stated above, certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals (section 100) which do not require qualifying service and action short of dismissal on these grounds could amount to a detriment which is unlawful (section 44).