Can I dismiss an employee who refuses to return to work?
Potentially. The first question is why the person is not able to return, as their individual circumstances will be very relevant in terms of whether they can be safely dismissed.
Employers should ask themselves 2 questions in this situation:
- Have I done everything I am required to do in order to make the workplace safe for the individual to return; and
- Is what the employee saying reasonable?
If the answer to question 1. is no then a dismissal is unlikely to be fair. However, even if the answer to question 1. is yes, then there is still question 2. to address. If the employee has reasonable grounds as to why they are unable to return to work, e.g. due to health issues, childcare responsibilities etc then the dismissal is unlikely to be fair. It is only if you can answer yes to question 1. and no to question 2. that you can have some confidence in the potential safety of the dismissal.
Dismissals based on objections to returning to work on health and safety grounds will very often be risky and are highly fact specific, therefore please contact one of the employment team for further advice prior to dismissal.
Related FAQs
Lay off is a temporary measure where an employee is required not to do any work by their employer in any given week and does not receive any salary for that period. This is sometimes used interchangeably to refer to redundancies; however, this is not correct and lay-off is different to redundancy.
Lay-off may be very useful to achieve short or medium-term cost savings in response to a temporary reduction in demand for products or services. Whether the employer has the right to implement lay-offs and how swiftly they can expect to be able to do so will depend on whether the relevant contracts of employment have specific provisions which deal with lay-off.
Short time working is where an employer temporarily reduces an employee’s working hours, with a corresponding reduction in their pay to less than 50% of their usual salary. This could be through reducing the number of working days, reducing the length of working days or a combination of both.
Short time working provides the employer with the ability to reduce staffing costs whilst providing flexibility in deciding the form of working pattern. As with lay-off, whether the employer has the right to unilaterally impose short-time working and how swiftly they can expect to practically implement this will depend on whether the relevant contracts of employment contain a short time working clause.
Where there is a contractual right to lay off or impose short time working: There is no strict process which has to be followed. We would advise transparent communication and confirmation in writing.
Where there is no contractual right: Imposing these options without a contractual right to do so will be a fundamental breach of the employee’s contract of employment. In these circumstances the employee’s options are: accept the situation and keep working; claim for lost pay; resign and claim constructive dismissal. The best approach for employers in these circumstances is to instead seek to agree lay-off or short-time working arrangements with employees.
Selecting employees for lay-off or short time working: There is no prescribed method for selecting which employees are to be laid-off or placed on short-time working, provided that the employee cannot argue that the method of selection is discriminatory in some way. We would advise selection based on objective business reasons.
Entitlement to pay during lay-off or short time working: Employees must be paid for the time they work. Additionally, while on lay off or short time working, an employee is entitled to receive statutory guarantee pay for the first 5 workless days in any 3-month period. The maximum statutory guarantee pay in any 3-month period is £150 (i.e. £30 for each workless day up to a maximum of 5).
Entitlement to statutory redundancy pay: Once employees have been on lay-off or on short-time working for 4 consecutive weeks or for a combined total of 6 weeks during any 13-week period, they may seek to claim a statutory redundancy payment (provided that they have two years’ service). There is a prescriptive process for this – please seek advice.
In most circumstances the answer will be no. It would be an infringement of their human rights. It could also be a criminal assault.
However where there is a high risk to employees of exposure to COVID-19, such as care homes and healthcare environments, you might be able to make it a requirement of their role to have the vaccine.
First, consider whether you need to have a blanket requirement covering all employees or whether only certain groups who work in the most high risk areas require the vaccine.
You will need to do a thorough risk assessment balancing the amount that the risk of exposure would be reduced against the interference with the employee’s human rights. Consideration will need to be given as to whether insisting on the vaccine is proportionate to the risk and whether other less invasive steps could be taken instead, such as maintaining social distancing, wearing a mask, washing hands.
Any requirement for employees to be vaccinated should be communicated clearly to employees and trade unions together with a clear explanation for why it is necessary.
Yes. Government guidance now confirms that employers can be required to take holiday during a period of furlough, so long as they are given minimum notice to do so. The notice required is double the length of the holiday.
Employers are also able to cancel employees’ holidays (or require them not to take holiday) if they are on furlough, for example if they are not in a position to pay the additional 20% top up to their normal wages (or more where they earn in excess of the £2,500 monthly cap on furlough payments). Again, employers are required to provide a minimum period of notice of cancellation, which in this case, is the length of the planned holiday.
Employers can ask employees to take or cancel holiday with less notice but they would need to get their agreement to do so.
Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.
- Keep in touch. If contact is poor, workers can feel disconnected, isolated or abandoned. This can adversely affect stress levels and mental health – especially in the current crisis when everyone is feeling more anxious.
- Think about the use of laptops/devices (DSE) at home. Provide a basic form of risk assessment for self-completion.
- Remind workers of simple steps to reduce the risks from display screen work:
- take regular breaks (at least 5 minutes every hour) or change activity
- avoid awkward, static postures by regularly changing position
- get up and move or do stretching exercises
- avoid eye fatigue by changing focus or blinking from time to time
The best advice is that parties should proceed as they would have done before the crisis began.