As restrictions lift, many employees who have been working from home will be asked to return to the workplace. The question is, can employers do that?
Bluntly, yes, they can. Fundamentally, a person’s place of work is governed by their employment contract. If an employee was stationed in the employer’s premises pre-Covid-19 (Coronavirus) then they could be require to return to those premises.
However, employees can always make flexible working requests to change their working patterns and therefore, employers should be prepared for this. It is important that employers also keep in mind the reasons for such requests and remember that requests motivated by childcare issues could open indirect sex discrimination complaints if they are refused.
Also, there is a requirement to maintain a level of consistency within the workforce. If an employer allows trusted employees to work from home but not those they don’t trust, without solid reasons for the difference in treatment, they could be on the end of a constructive dismissal claim. A policy on agile working is helpful and recommended.
Employees are protected by law if they refuse to return to a place of work that they reasonably believe presents a serious and imminent danger to them. The bottom line is that if an employee is penalised for not returning for these reasons then their employer could be on the end of an unfair dismissal or a detriment claim. As a result, it would be foolish for employers to take a one-size-fits-all approach to reluctant returners.
There are two key actions that employers should take. Firstly, they must prepare for the return of their workers by following government guidance specific to their business type, carry out the Covid risk assessments and implement necessary safety measures.
Secondly, they need to talk to their employees, without assuming that they will make up any reason not to come back to work. Consultation and clear communication of the measures that have been put in place to ensure a safe working environment is key. Encourage feedback and take a sensible and compassionate approach to concerns on an individual basis and of course, make requested changes, if you can.
In my experience in advising clients on this issue, when an employer complies fully with government guidance and properly informs and consults its staff on implemented safety measures, the employee’s argument that they believe they are in serious and imminent danger tends to lose traction.
Whatever happens, a greater expectation from employees to be able to work from home and any blanket refusal from employers could see not only claims but also employees leaving to join those with a more flexible approach. In my opinion, performance management training coupled by proper performance management implementation will be vital.
Kathryn Evans is a partner and head of employment at Trethowans
