Can I force an employee to return to work?

Screenshot 2020-05-21 at 09.06.25

Following the government’s announced plans regarding a gradual phasing out of lockdown, many business owners will now be planning their ‘re-opening’ strategy, which may involve bringing employees off furlough and back into the workplace.

But how should an employer manage an employee’s health and safety concerns about returning to work?

In a nutshell, respectfully and carefully if they want to avoid a potential legal claim. 

A new era of risk brings health and safety concerns to the fore for all types of business, with issues such as social distancing, use of protective equipment and enhanced hygiene practices presenting new challenges. 

With no vaccine and confusing and ever-evolving public health advice, employee anxieties about their personal health being at risk by returning to work are not unreasonable. Employees have a legal right to work in a safe environment, with no fear of harm.

Dismissing an employee or worker because of their refusal to return to work would therefore be very unwise.

Legally, if an employee believes that their workplace presents ‘serious and imminent danger’, they have the right to refuse to come into the workplace or take action themselves to mitigate the risk. Even if the employer disagrees with the employee’s assessment of the risk. 

In the event of a legal claim, the defending employer would need to demonstrate that the employee was unreasonable in their belief of those risks. It is worth noting that health and safety claims can be made from day 1 of employment and can incur unlimited damages, as well as a further potential complaint to the HSE against your business.

Additionally, an employer’s obligations, under their duty of care, can extend to the psychological impact of the global crisis on their employees. Employers should take into account situations such as those employees who are bereaved or have been unwell, are attempting to balance caring responsibilities for family members or are experiencing financial concerns.

So what can I do as an employer?

Two things. Risk assess, and communicate with your team. 

How well and how meaningfully you conduct these two tasks is likely to determine how successful you are in your mission to get your business running again with happy, safe and productive staff.. 

Take the time to understand, and mitigate against, the specific risks in your business and the health issues of your employees. Keep risk assessing and keep communicating until you reach an agreement with each employee to return to their roles in a way they both you and they feel is safe. 

Then ensure that all the discussed identified risks and safeguards are recorded in a coronavirus risk assessment, which all employers are required to carry out before they can allow employees to return to the workplace. This should be aligned to government guidance and constantly reviewed and updated in line with latest guidance. 

Good luck! If you need any help, let us know!

Good luck! If you need any help, let us know!

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