The conundrum facing employers

As pandemic restriction are gradually lifted, employers are facing employees who express concern and even fear, of returning to work.  If this does happen what steps should employers take?

  • Employers need to understand the issue.This will mean probing into employees’ individual circumstances to understand exactly why and what the reasons are. This should be done in a return to work meeting, in which any safety measures, risk assessments undertaken should be shown to the employee as a means of providing reassurance of safe working.
  • Don’t take a blanket approach. Employers will have toconsider issues such as employees living with someone who is shielding, or single parents who cannot secure childcare or have underlying health conditions. An employee cannot be at a detriment for refusing to return to the workplace where they have serious health and safety concerns. From a legal perspective if an employer decided to  discipline or reprimand, they may create issues of discrimination.
  • Proceed cautiously with disciplinary or dismissal action. An employer can impose rules or make requests, but if the employee refuses to comply and calls the employer’s bluff the employer should try to balance the concerns and work out how far they are willing to press the issue. It may be very challenging to take action, especially if the employee has personal circumstances that prevent their return.
  • Make a well-informed decision. If an organisation has followed all Government guidelines and ensured the risk is minimised for employees, but they still refuse to return, then the business also needs to be prepared to conclude a staff member doesn’t have reasonable grounds. The employer should then think very carefully about how to approach disciplinary proceedings, she says.
  • Remember whistleblowing protections. Employees who raise concerns (in the public interest) about health and safety risk in the workplace could also exercise whistleblowing rights. If they put their concerns for their safety in writing then that could be considered a disclosure against health and safety concerns. But if the employer has instigated a proper risk assessment and implemented measures based on their risk assessment control measures, that protective disclosure will carry little risk.

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