Despite talk of continuing steps towards a return to normal life, it would appear that the government envisages home working until at least 4th September.
Previously, under the Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 no person was to leave or be outside of their home without a reasonable excuse. A "reasonable excuse" included where it is reasonably necessary for a person to leave or be outside of their home for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for them to work, or to provide those services, from home (Schedule 3A, Part 1, paragraph 5(a), All Tiers Regulations, as amended). Therefore, the obligation was on employees to work from home if they could.
Whilst the above provisions have now been excised from The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (S.I. 2021/364) the current guidance is that employees should work from home where they can, and employers should facilitate this by providing suitable IT and equipment where possible. Where full homeworking is not possible, employers are encouraged to adopt a mix of home working and office-based working.
The first step is to understand the reasons why an employee is refusing to return to work. You will need to address their concerns and consider any health and safety issues they raise. Dismissing an employee who raises such concerns without addressing them is likely to be automatically unfair under Section 100 of the Employments Rights Act 1996 and there would be no requirement for an employee to have 2 years’ continuous service to bring this claim.
The pandemic has affected everyone in one way or another and therefore it would usually be advisable to take a flexible approach. Options would include the following:
If the employee still refuses to attend work and you wish to look at possible disciplinary action, we advise that you get in touch with our Employment Team for an initial consultation to minimise the risk of having to defend a claim for automatic dismissal or discrimination.
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