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When homeworking employees refuse to return to the office

As Sophie explains that although there’s a legal right for individuals to refuse to return to the workplace, this is only the case in very limited circumstances.

CABINET Office minister, Jacob Rees-Mogg, recently said civil servants must return to the office to ensure government buildings are at full capacity. Considering all the remaining Covid-19 legal restrictions were lifted in February 2022, a full-scale return to the workplace will have already taken place across most organisations.

That being said, there’ll undoubtedly be some employees who’ve settled into a commute-free routine and are keen to enjoy a flexible/hybrid working pattern moving forward. In fact, in some limited circumstances, an individual may even have a legal right to refuse a return to office working, so it’s vital employers assess each request on its own merits.

What does the current legislation state?
Under the current legislation, there’s only a limited right for workers to refuse to return to the workplace on health and safety grounds. Workers may stay away from their workplace where they have a reasonable belief that it would put them at risk of serious or imminent danger of which they could not be reasonably expected to avert.

There are specific statutory protections for staff if they’re disciplined, dismissed, or treated less favourably after having raised reasonable health and safety concerns.

While the removal of work from home guidance has undoubtedly strengthened an employer’s position if it wishes to encourage employees to return to the workplace, that doesn’t necessarily mean businesses should get complacent about the situation.

Instead, each case should be assessed individually, with employers consulting employees to find out why they’re refusing to return, and if there’s a health and safety or particular consideration that should be considered.

Protected characteristics
Employers must be mindful of the fact some individuals could have protected characteristics, such as a disability or pregnancy, which offer them additional protections. For example, an employee with severe anxiety may explain that their condition would be exacerbated by a requirement to travel to the office.

In such a case, an employer should seek medical advice. If the employee is found to be disabled, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages faced by the employee.

Reasonable adjustments may include allowing that person to continue working from home or changing the employee’s hours to avoid travelling at peak times. Whatever the situation may be, businesses must take the time to understand each case in detail, so the correct course of action can be taken.

Potential consequences
Those organisations that fail to take into account personal circumstances or health and safety concerns, put themselves at risk of serious financial and reputational damage. For example, an employer that ignores a protected characteristic and disciplines somebody for refusing to return could face discrimination claims, which can be costly and reflect badly on the business as a whole.

Since the start of the pandemic and the emergence of flexible working patterns, there’ve been many high-profile cases of unfair dismissals that have come as a result of businesses not taking concerns seriously.

In Quelch v Courtiers Support Services, compliance analyst Mr Quelch was found to have been automatically unfairly dismissed following his discharge for refusing to return to the office, despite explanations to his manager that his cohabitee was clinically vulnerable.

Mr Quelch brought several employment tribunal claims against his employer, and in reaching its decision, the tribunal considered courtiers had failed to follow government’s guidelines that ‘businesses should make every reasonable effort to enable working from home as a first option’.

Create policies and seek legal advice
To avoid claims, businesses should be open-minded when consulting employees, taking the time to understand their concerns, and making compromises where possible. An unexpected consequence of the pandemic has been an expectation that businesses will adjust their working practices and become more flexible, which is what they may have to do in order to retain staff.

One option would be the creation of a comprehensive hybrid working policy, which allows employees to split their time between the office and home. This will offer an individual more choice over their working patterns.

With such a policy in place, businesses can ensure individual productivity levels are preserved, while offering workers an opportunity to retain a degree of remote working.

By maintaining an ‘open-door’ policy throughout, workers will feel comfortable raising concerns they have surrounding a return to the workplace, which will give them confidence knowing they have the full support of their employers.

Of course, knowing what approach to take will depend on the unique circumstances of each case. However, given the risks to employers, businesses should always exercise caution before making a decision, obtaining employment advice from an experienced legal team where possible.
Sophie Georgiou is a solicitor at Buckles Solicitors

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