Many COVID-19 restrictions have now come to an end in Wales, such as the law around social distancing. This could cause potential issues for employers that require employees to return to the workplace when they have worked from home for the past 16 months or more.
HR and Employment Law Issues to Look Out For
Firstly, employees may be reluctant to return to the workplaces that they attended pre-lockdown. This poses a number of issues for employers and where an employee is either reluctant or refuses to return to the workplace, employers must establish the employee’s reasoning in the first instance.
Whilst the reluctance of some employees could stem from them not wanting to commute to work or their preference to work in casual clothes rather than formal attire (both of which could result in disciplinary action being taken), employers must be mindful that a reluctance or refusal to return to the workplace could be based on a more genuine reason.
For example, employers must consider that employees may have health and safety concerns. This could include employees being unsatisfied with the COVID-19 security measures or risk assessments that have been put in place by the employer. If an employee’s concern relates to an underlying medical condition that they have or they have been identified as ‘clinically vulnerable’, this could lead to a claim of automatic unfair dismissal and/or a claim of disability discrimination if they are forced to return to the workplace.
Employers also need to be aware of any caring duties (e.g. children or elderly relatives) that employees have and take that into consideration. As female employees tend to undertake more caring responsibilities than male employees, this could lead to a claim of sexual discrimination. Consideration must also be given to whether an employee is pregnant. Again, if handled incorrectly, this could lead to a claim of pregnancy/maternity and/or sexual discrimination.
Alleviating Return to Work Concerns
One way to defuse a number of the issues outlined above could be to consider a change in working practices, such as introducing hybrid working (e.g. three days in the office, two at home) or inviting employees to make flexible working requests for the working pattern that they wish to work.
As mentioned earlier, the first step employers should take if they have an employee who is refusing to return to the workplace should be to establish the reason for their refusal. Once this has been pinpointed, a considered view can be taken regarding any litigation risks and whether the employer can require the employee to return.
If you would like further information about the above or have any questions, please do not hesitate to contact our Employment Law team on 02920 853794 or at firstname.lastname@example.org.