Can you force employees back to work?

?The UK government has confirmed that from Wednesday 13 May those who are unable to work from home should be ‘actively encouraged’ to return to work.

However, a new Ipsos MORI study found the UK was the most cautious out of 14 countries about the prospect of re-opening the economy before Coronavirus is fully under control.

Three-quarters of Britons say they will be “very nervous” about leaving their homes when the coronavirus lockdown is lifted, and 35% are uncomfortable about returning to work.

The advice to date has been to work from home if you possibly can, and the furlough scheme has been available for many unable to do so. But as the government is making moves to discontinue the scheme, what power do employers have when moving workers back to the workplace?

The terms of an employees’ furlough agreement would have spelt out when their employer can ask them to return, and failure to do so can be a possible disciplinary matter. However, it is important for employers to talk to their employees to better understand their anxieties and try and put in place as many reasonable measures as possible to enforce social distancing.

The government has issued sector specific guidance but even this recognises that there may be some settings where social distancing is not going to be possible. In those cases, the emphasis is on hand washing and ensuring that those with symptoms do not come to work.

Split shifts are one idea but it might not suit all employees – either because of childcare or their work life balance. Any amended shift patterns should also be mindful not to indirectly discriminate against certain groups, although the employer has the defence of objective justification which will succeed if they have considered all other possibilities.

There are groups of people where the virus can be much more serious - those who are BAME or workers in high risk categories. Does the employer have to apply different rules to these groups? Probably.

Insisting that those in vulnerable groups come into work without being able to implement social distancing may well contravene an employer’s health and safety obligations. Employers should look at alternative roles that can be carried out from home or where the risk is reduced.

Pregnant women who have heart disease are also a high risk group. If the employer is unable to find alternative work for them then existing law says the employee must be sent home on full pay.

If the employer agrees, employees that have to homeschool children or care for someone with COVID-19 are currently covered under the furloughing scheme until the end of October. But what if the employer opts out of the scheme?

The law in relation to emergency time off for dependants allows an employee to take unpaid leave, and it would be unreasonable to suggest that alternative arrangements should have been put in place when we are in lockdown. However, unless the employer’s scheme says otherwise, it will be unpaid or, by agreement, using up holiday.

Those in households with someone who has COVID-19 can also claim statutory sick pay (SSP) and if the employer has fewer than 250 employees they can claim back two weeks of SSP from the government.

For those businesses that don’t think they can recover post lockdown, redundancies will be made. If there are 20 or more employees at one establishment there must be collective consultation with a recognised union or elected representatives for 30 days (45 days if 100 or more).

Those who do not want to return to work may find their names at the top of the list - although there is a risk that a tribunal will conclude that they were dismissed for whistleblowing, or reasons relating to health and safety complaints with unlimited compensation and no qualifying period of employment.

It is important during these unusual times to keep talking to your employees whether they’re on furlough, in the office or working from home. The business world as we know it has been turned upside down, but by understanding how employees feel and equally sharing the challenges of the organisation with them, the hope is that a mutual solution can be reached.

Beverley Sunderland is managing director at Crossland Employment Solicitors

Further reading:

What HR should know about England’s return to work guidance

Firms braced to restart in three weeks but lack safety guidance

Is it time for employees to have a legal right to work from home?