“Can an employee refuse to come back to work?”: We answer your employment questions on the Coronavirus exit plan

Partner and Head of Employment, Catherine Kerr addresses some frequently asked questions that may have arisen in light of the government’s latest announcements.

With guidelines developing every day, it can be difficult to know what applies to you and what action must be taken, so Catherine explains how some of the guidelines might be applied to individuals more specifically.

*Please note, all responses are correct at time of posting* 

Q: Does an employee have to come back to work if they don’t have access to childcare and can’t work from home?

A: Naturally, this is a real concern for many parents who are faced with the difficulty of potentially returning to work without childcare.

With the plan for schools reopening being backtracked by the government, this could leave some parents without childcare for months until schools re-open in September.  If you have employees in this situation, you should encourage them to discuss potential solutions with you so that they can organise their childcare. Continuing to work from home until a childcare solution can be met or working out a shift pattern so that caregivers are at home at different times may provide some relief. Alternatively, it may be advisable to keep employees with childcare problems on furlough leave until childcare becomes available.

Nurseries have been given the go-ahead to re-open from the 1st June and paid childcare such as nannies and childminders have been given the green light, provided they comply with public health principles which are outlined in Annexe A in the government guidance The early years centres are to continue following social distancing guidelines and may only be open for certain ages at the moment but this should hopefully provide some small relief to people required to return to work.

Q: Can an employee refuse to return to work if they are worried about their health?

A: If an employee feels unsafe at work or considers undertaking certain actions in the workplace to be unsafe, they are well within their legal rights to leave. In this instance, they are protected from any unfair treatment should they choose to take this action and should not be dismissed in relation to it.

The government is providing detailed advice to employers on how to implement the necessary health and safety measures to ensure employees are as secure as possible in the workplace, including guidance on social distancing. However, with no real end in sight for the current situation, you should be open to hearing from employees regarding residual concerns and you should look to discuss and solve them informally where possible, to see if a positive solution can be reached.

You have a duty of care towards your employees and should take comments such as these seriously and deal with them reasonably. If your employees feel it is too unsafe to work, potential solutions could include working from home where possible (or being deployed to another area of the business that allows for home working) or taking holiday or unpaid leave.

If your employees still feel that their concern has not been resolved and they continue to feel unsafe in the workplace and that government guidance is not being followed, they may deem it appropriate to raise a formal grievance. Therefore, it is advisable to deal with all concerns as and when they arrive to avoid a hearing at the employment tribunal.

Q: Can an employee refuse to go to work if their only means of getting there is on public transport?

A: The government’s latest advice is that people should consider all other forms of transport before using public transport. Instead, people should ideally be travelling to work on foot or by bicycle, or in their own vehicle.

If you have employees who have no other choice but to use public transport to get to and from work, it is advisable to consider potential alternative solutions. You should treat any concerns of this nature sensitively and give them reasonable consideration. The government are suggesting people try and travel at off-peak times and that flexible working hours are agreed with employees to support this if possible.

From a legal perspective, however, if an employee refuses to go to work altogether, and reasonable measures have been put into place in the workplace that are in line with government guidance, this could be viewed as an unreasonable refusal to work and could be cause for dismissal.

Q: Can employees still be made redundant at the end of furlough?

A: The Coronavirus Job Retention Scheme (“The Scheme”) has been implemented by the government in an effort to reduce the number of redundancies caused by COVID-19. It also alleviates some of the pressure on employers who may be experiencing a downturn in business because of the virus.

With the recent announcement that The Scheme will be extended to October with increasing contributions to be made by the employer up to that point, this should provide some security for both employees and employers that are taking advantage of the furlough scheme. However, this does not mean that redundancies are out of the question. Both redundancy and furlough are subject to there being ‘no work’ for employees to do, and so it is possible to make employees redundant if you cannot afford to pay your wages once government support is no longer available. All other options should be considered and taken into account before making decisions such as these, and if redundancy is the only solution, a fair and reasonable process must be followed.

Q: Does the furlough scheme still cover holidays and bank holidays at 80%?

A: Government guidance states that anyone placed on furlough leave will continue to accrue holiday as normal during this time. In terms of payment, according to Working Time Regulations (WTR), any holiday taken by furloughed employees should be paid at their normal rate of holiday pay. If their rate of pay varies, this should be calculated based on the average pay received in the previous 52 working weeks.

If this amount is more than the 80% paid by the government (up to £2,500), you must top up the remaining amount. Bear in mind, however, that accrued and remaining holidays can be carried over into next year if they cannot ‘reasonably’ be taken in the current year.

If you’d like more information on changes to the CJRS or have a question about handling the return to work, feel free to get in touch via catherine.kerr@primaslaw.co.uk

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