IT’S a question that a lot of people may be asking in the coming weeks: “Can they make me go back in to work?”

With a third of the population fully vaccinated and non-essential businesses largely open, it might look as though the world is well on the way back to normality.

But for now, the official advice is to work from home if you can – and it is not clear whether the government will remove those restrictions as it hoped on June 21.

The current position is still advice rather than law, so employees and their bosses may both be unclear what to do if there is a disagreement.

Can you refuse to go back?

Dorset law firm Coles Miller has received a “large number” of calls from people worried about returning to work after furlough or long periods working from home.

Many of the calls were from expectant mothers – even before a report that having Covid-19 at, or near, the time of birth could increase the risk of stillbirth or premature birth.

Hugh Reid, employment law solicitor at the firm’s Poole office, said there was little government or judicial guidance on whether employees can refuse to return to the workplace for fear of catching Covid-19.

“Employers should recognise that many people will naturally be nervous about leaving lockdown and therefore increasing their risk of contracting coronavirus,” he said.

“If an employee is reluctant to return to the workplace, the employer should explore the employee’s actual reasons and try to address any specific concerns they may have. They should always take into consideration the employee’s individual concerns.”

Kate Brooks, who is a Partner and head of Employment/HR at Ellis Jones Solicitors.

Kate Brooks, who is a Partner and head of Employment/HR at Ellis Jones Solicitors.

Kate Brooks, employment solicitor and partner at law firm Ellis Jones in Bournemouth, said the employee would not necessarily have to go into work just because the boss said so.

“An employee could refuse to go into work if there is a genuine reason, for example due to health and safety concerns, risk of Covid infection, medical condition, illness, vulnerable family member, or pregnancy,” she said.

“If the employee has been working from home for the last year, they could argue that it is now an implied term to work from home. If the employer forced them back in, the employee could arguably treat themselves as constructively dismissed.

“This may be a bit drastic. Before doing do, they should certainly raise all and any concerns they have, and set out justification for continuing to work at home.

“It is important the employee makes any health and safety or discrimination allegations known, to protect themselves in the future.”

Amy Cousineau Massey, consultant employment solicitor at Woodstock Legal Services in Poole

Amy Cousineau Massey, consultant employment solicitor at Woodstock Legal Services in Poole

Amy Cousineau Massey, consultant employment solicitor at Woodstock Legal Services in Poole, said: “If an employer is requesting that its employees return to work before the official advice is lifted, an employee has no direct recourse to refuse on the grounds of the request alone.

“However, if an employee can demonstrate that they genuinely perceive the workplace as unsafe they may be protected in the event of a dismissal.

“If, however, an employee is unable to demonstrate that they perceive the workplace to be unsafe and rather the issue is that they prefer working from home, any refusal to return to the workplace might result in the employee being dismissed and that dismissal, provided a proper procedure was followed, would likely be fair.”

What should an employer do instead?

The current guidance says that an employer should only ask staff to go into work if it is not possible to work from home.

In the workplace, the employer must take all reasonable steps to reduce the risks posed by the virus.

Tom Doherty of the HR Dept

Tom Doherty of the HR Dept

Tom Doherty, managing director of the HR Dept in Bournemouth, Poole, East Dorset and the New Forest, said: “We know that will be a different mix of people wanting to get back in and others who may be anxious about a return. Being even-handed in your approach to this as an employer is important.

“Have a clear plan on the how the return will work – the logistics of it. Ensuring you have your Covid secure plans or risk assessment updated and communicated to your staff will assist in addressing any initial concerns. Naturally then as an employer you are doing as much as you can in preparing for the return of colleagues.

“You can then engage in an open conversation if any concerns are raised by an employee about a return to work. As an employer, you are demonstrating your commitment to listening, taking into account and addressing any views by an anxious employee.”

A number of his clients have received requests from employees to move to permanent home working.

“It should be remembered that there is no blanket response to this and all eligible employees have the right to have their flexible working request assessed on its own merit and against its own criteria,” he says.

“There is a code of practice to follow with formal flexible working requests so don't just dismiss it. Take HR/employment law advice.”

Employment solicitor Hugh Reid of Coles Miller Solicitors, Poole

Employment solicitor Hugh Reid of Coles Miller Solicitors, Poole

Hugh Reid of Coles Miller added: “If an employee has health concerns that make them vulnerable to coronavirus, the employer should again consider alternatives to requiring them to return to work. This should take into account the employer’s duty to make reasonable adjustments, which is likely to apply in most cases.

“Taking disciplinary action against any employee in any of these circumstances could leave the employer open to a number of claims, including discrimination.”

Amy Cousineau Massey added: “If, before government advice has changed, you have discovered reasons why an employee cannot carry out their work from home, such as supervision or productivity issues, it may be reasonable to begin an earlier repatriation of that employee back into the office environment.

“However, it would be important to be clear with employees of the reason why you are requiring them to return to the office despite current government advice and this reason should be legitimate.

“The reintegration back into office-based working, whether it takes place now or once government advice has changed, should be handled sensitively and ideally with a consultation process taking place. A thorough consultation with employees will not only give an employer a good idea of which employees will happily return to the office, but it will also indicate which employees need extra considerations or support. Employers must be careful not to discriminate indirectly by applying one rule for all when some employees may be entitled to have reasonable adjustments.”

She added: “Any employer seeking to repatriate its employees into the office must have appropriate health and safety measures in place and must follow the relevant government guidelines on for their workplace.”

Hugh Reid said employees who are shielding or who have childcare responsibilities should not be required to return.

“Other options should be explored, such as adjusting the employee’s role to enable them to work from home, or keeping them on furlough,” he says.

What about the risk of travel?

Some people might be as worried about getting Covid on the way to work as in the workplace.

Coles Miller’s Hugh Reid said: “If the employee is concerned about using public transport, there should be a discussion about whether their start times could be changed to allow them to travel at quieter times.

“The employer must comply with the duty of mutual trust and confidence, and so should consider whether it is fair and reasonable to expect the employee to use public transport.

“The fact that some employees are prepared to use public transport does not necessarily mean that it is reasonable to expect others to do the same.”

What if the employer has done everything they can?

The employer might be confident that risk control is in place and that it is reasonable to instruct an employee to go into work.

“One option is to ask the employee to agree to a period of unpaid leave,” said Hugh Reid.

“If the employee does not agree to this, the employer may decide to withhold their pay in any event. The employer would also have the option of taking disciplinary action leading to dismissal, although this option is likely to present more of a risk in terms of tribunal claims and reputational damage.”

Since this is the first pandemic of modern times, there is not much in the way of legal precedent to look to.

“But no doubt there will be cases in the future,” said Mr Reid.

He pointed to a case in which a lorry driver refused to wear a mask when delivering at a Tate & Lyle factory despite repeated requests.

The driver was banned from the premises, preventing him from delivering. Kent Foods sacked him for misconduct – and the tribunal found this to be fair.

But few would want a case to get that far.

Kate Brooks said: “Most employers are doing their best to navigate through the road map, and employees are encouraged to engage with this and raise concerns at an early stage along with suggestions to alleviate. Employers should then carry out further risks assessments to see if concerns can be addressed.

“Employers are encouraged to engage and communicate with employees about plans for a return to work. As a minimum, my advice is that employers should find out whether their staff are concerned about returning to work, what measures can alleviate these concerns, and where possible are staff looking for flexible working going forward. I suggest managers speaking with their teams and employers carrying out staff surveys.”

Tom Doherty of the HR Dept said: “Let's be honest, if you haven't set foot in your place of work for over a year, it will be like a new first day experience.

“So some degree of understanding about any interpretation is likely to result in more buy-in from an employee in the longer term.”