: At what point is it reasonable to insist staff return to the workplace?

To coin an overused phrase: we are in unprecedented times. We have virtually zero case law to draw on. To date, I have been advising on what seems reasonable in the circumstances. Finally though, we are starting to see some legal guidance coming through!

A GB employment tribunal has ruled in a case as to whether an employee can rely on health and safety protections or whether a refusal to return to work is a justified reason for dismissal.

In this case, the Tribunal did not accept the employee’s assertion that there was a “serious and imminent danger” due to the fact that:

  • He was comfortable enough to drive his friend to hospital when he was told to self-isolate.
  • He didn’t raise the matter nor was he able to demonstrate the danger
  • The employer had taken reasonable steps to protect the employee

NB this employee didn’t have sufficient service to make an unfair dismissal claim, hence the claim on health and safety grounds. Whilst we now have guidance on how other Tribunals are likely to rule in these circumstances, we haven’t seen any rulings to date on unfair dismissal cases.

This is early positive news from one Tribunal which is welcomed as we ease employees back into work.

Dealing with employees returning to the workplace after being furloughed:

Employers are planning how to handle their employees and workplaces as more sectors of the economy reopen. Although many employees have been working from home, many have been furloughed as part of the government’s Coronavirus Job Retention Scheme (CJRS).

People may have been unemployed for several months, or even nearly a year, in some cases. Others may have been ‘flexibly furloughed,’ meaning they worked fewer hours than they were supposed to (for example 3 days rather than 5). This guide examines some of the most important topics that employers must address when managing furloughed employees.

How to prepare for their return:

Most employers will have furloughed staff for one of three reasons:

  • Their work cannot be done from home
  • The company or organisation has been required to be temporarily closed (such as hospitality)
  • Individuals have been unable to attend work for health related reasons (particularly those required to ‘shield’)

Depending on whether workers were furloughed, the approach to planning for their return to the workplace may need to be adjusted. In particular, if your workplace has been completely closed, you must take measures to make it “COVID-secure” before reopening, as per government guidelines. Employers should also be prepared to address any questions workers might have about returning to work.

Reinduction to the workplace

If people have been out of work for a long time, you may want to hold a formal “reinduction” session before they return. The length and scope of this reinduction can vary depending on the specific business situation, but it should typically include the following:

  • Welcome back to the company – remind individuals they have been missed
  • A health and safety briefing on any COVID related changes (such as social distancing, new entry/exit points, one way systems, when masks need to be worn etc).
  • A reminder of normal health and safety processes (particularly if these have been amended since the start of the pandemic)
  • Changes to company rules and procedures
  • Any other changes to the business that have occurred in this time.

Training or retraining may be required for some companies, especially if there is a technical component to the job that individuals have not performed in a long time. Individuals will need ongoing support, especially in the first few weeks, after a formal reinduction.

Dealing with Issues after returning to the workplace from Furlough

Vaccination concerns:

You will also find that a large portion of the workforce has not been vaccinated as the vaccine rollout continues. Individuals who have not yet been vaccinated or who work with workers who have not yet been vaccinated may be concerned regarding returning to work. You should also consider the company’s vaccination policy and be prepared to deal with any employees who are hesitant to get vaccinated or who may not wish to get the vaccine. We have released a blog around this topic and for some advice – take a look at our socials to find out more.

Travelling:

Staff may not have any problems returning to work, but they may be concerned about having to commute. Despite the fact that public transportation operators have taken specific measures to ensure passenger safety, there may still be problems:

  • The need to ensure social distancing may mean that capacity is limited on services
  • Some services may have been rescheduled or are running at reduced capacity
  • Some services may need to be pre-booked.

If transportation choices are small, you might want to consider modifying start and finish times (if possible) or taking a more lenient approach to punctuality. If your employees refuse to use public transportation due to health issues, you should talk to them about it. If applicable, refer them to government guidelines.

It’s important to note that each of the UK nations have their own system of regulations as do NI and ROI. You should consult the applicable rules and guidance for each jurisdiction and adjust your plans accordingly, particularly if you have employees who work across borders (for example, reside in NI but work in the Republic or vice versa) or have locations in different countries.

Employers should try to be versatile and understanding when preparing a return to the workplace for furloughed staff and dealing with the sensitive area of COVID-19, taking into account the various forms of support and communication that might be needed. Here at Opal People Solutions we can help you with easing employees back into the workplace, with the many new policies and procedures you may have to now put in place or update.

And REMEMBER: Reasonableness is key!

To find out more about how we can help you deal with this- watch our video series, send us an email via louise@opalpeoplesolutions.com or schedule a free 15 minute consultation with myself click the link: Calendly – Louise McGeady.