A guide for letting agents on returning remote staff members to work

What should you consider when staff members who have been working remotely as a result of Covid-19 start returning to the office? Molly-Ellen Turecek of DAS Law UK looks at what employers need to consider when returning staff members to work.

How can you reassure your staff members that your workplace is safe?

Most staff members will be looking for reassurance that you have carried out substantial risk assessments into how social distancing measures are going to be implemented following lockdown. They will want to know how they can access the facilities, how they can use the lift (particularly if they have mobility issues), how they are going to avoid coming into contact with others on the stairwell as well working with others on site.

You must work on getting operating procedures in place not only from their own health and safety risk perspective, but also to provide reassurance to their workforce, to reintroduce them to the workplace and fulfil their duty of care to their staff. Is there a possibility for the staff member to continue to work from home? Would this assist the staff member? If this can be facilitated, it should be considered seriously.

Where there is no clause in the contract of employment which gives the staff member the right to full pay in a situation where they are not arriving for work, then the employer has the right to withhold pay if the staff member is not available for work. If the staff member is not unwell and not eligible for contractual sick pay or SSP, an employer may wish to gain the staff member’s agreement to a period of unpaid leave for assurance.

You could begin disciplinary proceedings against a staff member who is unreasonably refusing to work, however in the interests of your relationship, this should always be a last resort. You must discuss the staff members' concerns with them first, understand the reasons why they are not willing to work and see if they can be resolved by reassuring the staff member of measures that you are taking to ensure the safety of everyone.

What can we do if staff members are refusing to return to work?

During the current crisis, it can sometimes be quite tricky to manage employee relations, especially from a distance. We are starting to see employers encounter an issue where they are removing staff members from furlough and requiring them to return to the workplace. Some staff members simply do not want to return. Where staff members are unreasonably refusing to work this may warrant disciplinary action as the staff member’s absence would not be authorised. However, before jumping to this stage you should ensure that you fully understand why your staff member is refusing to work and be comfortable that their refusal is unreasonable. See below for further discussion of this topic. Please consider taking legal advice before taking any disciplinary action.

Is it acceptable for a staff member to refuse to attend work when the government is encouraging a return to the workplace?

This is a difficult issue and one where you as an employer, needs to tread carefully. As a starting point (as is the case with most employment related issues), it is advisable to have a discussion with your staff member to establish why they are refusing to return to work. It may be something that can be resolved informally after a discreet and reassuring conversation.

What if a staff member is refusing to work because they are shielding according to government advice?

If the government or NHS has advised your staff member to shield, then it is very likely that they are suffering from a condition which will amount to a disability for the purposes of the Equality Act 2010. They may have been issued with a letter from the NHS or their GP and you can request a copy of this letter which will help to guide you in understanding the risk for that staff member of returning to work.

According to the government guidance, any staff members who are shielding are eligible for furlough, therefore it is advisable to place them on furlough, and if necessary make a claim under the Coronavirus Job Retention Scheme. Please note however that if the staff member is off sick and on SSP, it is not possible for them to be furloughed. They would need to be taken off SSP first.

If you decide to discipline or dismiss a staff member who is refusing to work because they are shielding, then this is likely amount to disability discrimination. Our recommendation is that legal advice is taken if you have any difficulties here.

What if a staff member is self-isolating but isn’t required to do so?

If a staff member is choosing to self-isolate but isn’t required to do so according to the government guidance, then you should have a discussion with them about their concerns and take into account their personal circumstances.

It may be that the staff member is feeling anxious about the risk of infection, in particular the inability to control others’ actions outside of their own home. Whilst difficult, you must invest the time to understand the staff member’s concerns, reassure them that your workplace is Covid-secure, and work with them to try to resolve them.

It is possible that the staff member is suffering with a mental condition or symptoms of anxiety, which is something that is likely to occur across all industries given the complexities of Ccovid-19 for all. Flexibility and understanding is needed. If you suspect that a staff member may be unwell and need to speak to a GP, there is no harm in discussing this discreetly with them.

If the employee is signed off by their GP then you would need to follow your normal sick pay rules.

Do employers need to be wary of staff member’s whistleblowing?

If a staff member makes it clear to their employer that they cannot return to work because they are concerned about their health and safety, this could amount to whistleblowing. It is important for you to tread carefully, as an employer should not penalise a staff member for whistleblowing, or making a protected disclosure.

A staff member may state that they are not attending work because it is not safe to do so. It may amount to a protected disclosure if a staff member states that they consider that someone’s health and safety is likely to be endangered.

You should distinguish between the staff member disclosing that their health and/or safety may be in danger, and the staff member refusing to work. You should listen to the staff member’s concerns and address them, and if you do decide to withhold the staff member’s salary or instigate disciplinary proceedings, it should be clear that this is in relation to the staff member failing to attend work and not because they raised concerns. Again, an employer should tread carefully when such action and we strongly recommend that legal advice is taken prior to taken any action.

An employer may find the ACAS guidance on this matter useful, it can be found on the ACAS website. Employers need to ensure that their whistleblowing policies are up to date and accessible to staff members. It is important to make sure that managers are trained on these policies so that they are able to spot when a staff member may be whistleblowing and to ensure that no detrimental or negative treatment is used.

What if an employee is refusing to work because they have childcare issues?

The government’s decision to close schools again has inevitably put a lot of strain on many employees. If an employee raises that they are experiencing childcare issues and it is impacting their ability to work, the employer should firstly have a discussion with them and take into account their personal circumstances.
If an employee is unable to work due to childcare reasons they are able to request that they are placed under the Coronavirus Job Retention Scheme but employers can reject their request. Alternatively, an employee can request to use their annual leave or can request to take unpaid leave.

An employer should also handle these matters with care and should not put an employee at any detriment or dismiss an employee directly due to them exercising their right to time off for dependents and/or their right to take parental leave. We strongly recommend that legal advice is taken prior to taking any action.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.