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HR COVID Update : when employees refuse to return to the workplace

When the coronavirus pandemic first hit the UK, employees were asked to stay at home, to protect lives and the NHS. Employees are now back at work where they cant work from home, but what about the many thousands of employees that do not feel safe to return to work?

Whether because they themselves are vulnerable, whether it's because they live with someone who is vulnerable, or perhaps it’s simply that they are worried about using public transport. This problem could be exacerbated further by working in a GP Practice, the one place that the public go when they feel unwell.

So as a Manager, what can you do about it? We all understand that these are difficult times and most of us are understanding employees' concerns, but the practice still needs to run for the patients…

Can the employee stay off work?

There are two sections of the Employment Rights Act 1996 that may help to answer this question.

Section 44 states that “An employee has the right not to be subjected to any detriment” and “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”.

This is stating that an employee can indeed choose not to come to work if they believe that they are in imminent and serious danger.

Section 100 goes further to state that any employee who is dismissed due to not coming into work because they were concerned for their safety will have been unfairly dismissed.

An employee who is dismissed shall be regarded…as unfairly dismissed if the reason for the dismissal is that…(the employee) refused to return to his place of work or any dangerous part of his place of work, or…in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

As an automatically unfair reason for dismissal, this applies to all employees, even those with less than two years of service, and the award at the tribunal is uncapped.

So, they can stay off work, but do you have to pay them?

This is where it gets more complicated. There are two current areas of law that completely contradict each other. The Employment Rights Act 1996 Sect 44 states that an employee should not suffer a detriment for staying away from the workplace. However common law states that an employee must be “ready, willing and able” to be entitled to pay.

Both answers seem simple and straightforward, but unfortunately, this is going to be down to the Supreme Court to decide and unfortunately isn’t going to be likely for a number of years. So what do we do in the meantime?

 There are 3 options:

Dismiss the Employee

The employee is refusing to come to work and therefore the business moves to dismiss the employee. This is highly risky and using Sect 100 of the Employment Rights Act 1996, it is likely to be automatically unfair and therefore two years of service is not necessary, and the award would be uncapped.

Stay at Home on Full Pay

The employee could stay at home but on full pay. This is the safest option, however is likely to cost the business significantly. The risk with this option is that once one employee realises that they can stay at home on full pay it would be easy for other employees to do the same, leaving the business short on staff but also still paying out.

Stay at home on No Pay

This is the option recommended by leading employment lawyers. The reason for that is that should the Supreme Court rule in favour of the Employment Rights Act, the employer will have to pay out the wages owed. But, if they do not and instead find in favour of having to be “Ready, Willing and Able” the employer will not need to pay anything out. Furthermore, this is not likely to result in employees being able to take advantage of the system.

Overall, we will wait to see what happens in the next few months. There is no “perfect” answer in these unprecedented times.

If you’re an FPM member and need any help with an employee who is refusing to come into work, contact the FPM HR Helpline at hrhelp@firstpracticemanagement.co.uk


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