This article is written for the Stray Ferret by Harrogate employment lawyer Richard Port. Richard is Principal Solicitor and Founding Director at Boardside legal. Over the next 3 weeks he will explore the issues raised for employers and employees returning to work post furlough. This article is not legal advice - more a look at the complexities of the current situation. 

Recent government announcements have suggested that the current furlough guidance might shortly be changed and that those who can go back to work safely should now do so. It is worth noting that it is currently a criminal offence for a person to go to work, when such work can reasonably be done from home.

However, if the changes are made, I’m sure that many people will want to return to work straightaway, but there will be many who do not. Indeed, I have dealt with a number of company clients in the last few weeks who are having to grapple with the conflict between ending furlough and dealing with reluctant returners: in my case a food production business (ABC Ltd) and the reluctant ‘Fred’.

First and foremost, the place of work needs to be covid safe, to reduce the potential for transmission as much as possible. This means providing adequate PPE and having a robust hygiene system in place, and compliance with social distancing rules.

Imagine that ABC Ltd has done it all; it is the paragon of compliance and hygiene. Nonetheless, despite his employer being an essential service, Fred is reluctant: he is worried, claiming that he has a ‘new’ medical condition (understood to be asthma) for which he must take steroids. Fred considers himself to be clinically vulnerable, though he does not have any form of medical certificate signing him off work. ABC Ltd has kept in touch with Fred during furlough and is now asking him to return to work. Sometimes getting hold of Fred has been quite difficult, despite being “house-bound”. We understand that Fred enjoys his golf.

Of course, there will be a wide variety of reasons (supported by various legal protections) why employees may be reluctant to return to work which should be taken seriously. In other cases, like Fred, employees may have no good reason for refusing. Leaving this aside, what options does ABC Ltd have in relation to Fred? As difficult as it might be, ABC Ltd needs to tread carefully. Employers should work on a case-by-case basis and ensure that they have carried out thorough risk assessments and implemented relevant covid safety measures.

Ultimately, ABC Ltd may seek to stop paying Fred in the circumstances, or even to dismiss him, but both of these courses of action for refusing to return to work are fraught with danger and could lead to employment tribunal claims being raised, particularly if the employer’s health and safety processes are short of what is reasonably practical to put in place.

It is a complicated subject, but my experience is that many organisations are now reviewing their working practices and looking at ways to create a more adaptive, innovative and resilient workforce. If ABC Ltd gets this right, it will ensure its long-term viability and the health and well-being of its workforce, with better morale and higher productivity.

 

Next week, Richard looks at the rights of the employee and looks at the case of Fred.