Can employees legally refuse to return to the workplace?

Authored by DAS

Across the country the calls for employees to return to the workplace are increasing with the PM apparently backing Jacob Rees-Mogg over his request for civil servants to return to their offices. More recently, working from home was blamed for a blunder at Bournemouth council when two 60ft 5G masts were ‘wrongly erected’ after planning officials missed the deadline to block their installation.

However, many employees may still feel uncomfortable about returning to the workplace. Can employees legally refuse to return to work if they feel unsafe and where does the law stand on the matter?

Simon Roberts, Senior Associate at DAS Law, looks at what you need to know.

My employer has asked me to return to the workplace, but I don’t feel safe. Can I refuse to come back?

This depends upon the situation itself. Your employer owes you a duty of care. The law is very clear on the fact that if you feel that your place of work is unsafe, then you would be protected when taking certain measures, an example of this could be refusing to attend.

The law is there to protect you when it comes to your safety, and you therefore should not be put to any detriment as a result of taking such steps. If you are treated unfairly, dismissed or you choose to resign as a result of you raising health and safety issues, then you may have a claim against your employer under the Employment Rights Act 1996.

Whether you would be justified in your claim would be dependent on a number of factors. The Employment Tribunal would consider factors such as whether your concerns and beliefs were reasonable and justified, whether employers had followed any guidance, and the extent of the danger you would be placed under if you returning to work.

The employer owes a duty of care to all employees, and if the employers have implemented all reasonable steps and is complying with all safety measures, and risk assessments have been carried out, then unless there is a medical reason for your concerns about returning, the employer may consider you to be on unauthorised absence that could result in disciplinary action.

If I don’t want to return to work, can I negotiate with my employer to continue working from home? Can an employer refuse my request and is there a risk I might be dismissed?

Ultimately, this would come down to what the reasons are behind your request, and whether it’s sustainable for you to be working from home. Should you have any concerns about returning to work, then you could always run these past your employer to begin with. You may also be eligible to make a formal request to work from home; in this situation, your employer would have to justify any refusal by relying upon one of the specific statutory grounds.

With regards to dismissal, the law is there to protect employees who raise health and safety concerns, sometimes known as ‘whistle-blowing’. This is regardless of length of service, and if you are able to show that you have ‘whistle-blown’ then you are protected by the law. Whistleblowing includes reporting any concerns relating to health and safety and you therefore should not be put at any detriment for doing so. Should you be dismissed you could potentially have a claim for an automatic unfair dismissal.

I have been asked to return to work but do not feel safe using public transport. Can I refuse to return or insist my employer pays/organises safe transport to and from work?

This is an unprecedented area, one that is unlikely to provide definitive guidance until cases begin to be held at tribunals.

Although your employer does owe a duty of care to you and other members of staff, they do not have an obligation to arrange or pay for any safe transport to and from the workplace (unless contractually obliged to) and this is generally not a reason to refuse to attend. However, as above, should you have any concerns around the safety of travelling back and forth to the workplace, you could approach your employer and raise this with them. Individual circumstances may be considered, and certainly relevant at a Tribunal, for example someone with an underlying medical reason may be more justified in their refusal to use public transport based on health and safety grounds and thus having the additional protection provided by the Employment rights Act.

My medical history makes me more vulnerable to Covid-19. Can I refuse to return to work until I feel comfortable and safe to do so?

This will depend on the individual circumstances. You could firstly raise this with your employer informally if you feel the workplace is unsafe. Should you not get the answer you had hoped for, then you could consider the more formal route of a grievance which could outline your concerns with regards to health and safety.

You could also consider speaking with your GP for some advice with regards to your medical history and whether they can give any recommendations or suggestions that you could put forward to your employer (if any). Should the risk be too high then a ‘fit note’ from the doctor may be an option. However, failure to have good reason for not returning to work could be considered as unauthorised absence. If you do have a genuine reason and health concerns that affect your ability to return to work, best practice would be to ensure that you have a letter or fit note confirming the need to remain off work due to the risks.

I have recovered from Coronavirus – does this mean it is safe for me to return to work and interact with colleagues?

As long as you have followed current guidance from the NHS, then it should be fine for you to return to work.. Should your symptoms return, then you should follow the relevant NHS and medical guidance. It is also imperative that your employer has carried out health & safety and risk assessments to ensure that the workplace is safe for you and everyone else.

I wish to return to work but I live with someone who is clinically vulnerable. Can I continue to work from home?

In this situation it would be best to speak with your employer in first instance to see what their approach would be – they may continue to allow you to work from home (if possible). Should their response not be what was hoped for, then you could raise it formally as a grievance, outlining your concerns around health and safety. However, if you refuse to return without your employer’s consent, then this could be deemed as unauthorised absence and may be subjected to disciplinary action, or dismissal.

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