Refusal to Return to Work from Furlough

In our blog on 27 May 2020 we provided information about employees returning to work from Furlough.  The original contracts of employment for these employees will still stand unless the employer agrees different terms with any of them.

What if an employee refuses to return to work?

In this situation, an employee is essentially refusing to carry out their part of their employment contract and this may mean that the employer can commence disciplinary action.

In the first instance the employer should try to establish the reason behind the refusal to return to work. Disciplinary action may not be the correct process to follow if the employee: –

• is pregnant
• is in a vulnerable position with any underlying health issues or of a certain age
• has been advised to self-shield
• is displaying Coronavirus symptoms or is exposed to someone who has the symptoms

Another valid reason for not wanting to return would be where the employee has concerns over the health and safety of the working conditions that they are returning to.

As part of the process of taking employees back from Furlough, the advice is that employers should outline what has been done to protect staff and try and cover off any potential issues before any concerns are raised.

If the employer has gone beyond the minimum requirements, then the employee should not be able to argue that there are health and safety grounds for not returning to work.

However, it is expected that Employment Tribunals will be sympathetic to employees’ reasons for not returning to work.  So, if the employee can carry out their duties from home to the same level, without affecting the business, then disciplinary action or even dismissal may not be the correct decision.

If employees need to take time off to look after dependents this will be treated as unpaid leave unless the employer’s workplace policy states differently.  Any time off must be seen as ‘reasonable.’

In summary, employers should engage in early discussions with their employees and work out the reason employees do not feel they can return to work. Employers can then consider suitable solutions and how these affect the business as a whole.

Businesses should always take advice from an employment lawyer if they have any doubt about what they are doing or if they feel they may need to consider any disciplinary action against an employee.

https://jsca.co.uk/returning-from-furlough/

Photo by Ewien van Bergeijk – Kwant on Unsplash