EMPLOYEES REFUSING TO RETURN UNDER ALERT LEVEL 2?

It is important to note that for both employers and employees standard employment laws apply even if these are not standard employment times. Concerns have been raised among hospitality business owners regarding the refusal of staff to come back to work under Alert Level 2. 

To operate at Level 2 businesses must have created a COVID-19 safety plan in order to comply with public health guidance and overarching legislation. If an employer has taken the appropriate steps then generally an employee cannot refuse to return.

An employee may only refuse to come to work where an employer has failed to meet those safety obligations. Employers must be able to show that they are listening to concerns voiced by employees while looking for ways to resolve them.

An employee is able to remain at home and in their bubble when:

  • They are able to continue to work from home, as normal.
  • Public health guidance requires that the employee stay at home. This encompasses the following people:
    • Employees who are sick with Covid-19.
    • Employees required to self-isolate because they have come into close contact with a person infected with Covid-19.
    • Employees who have dependents that are either infected with Covid-19 or have come into close contact with a person infected with Covid-19.
    • Employees who are at a higher risk of becoming severely ill with Covid-19, or have a person in their household that is at a higher risk.
  • Another form of leave entitlement applies to them.
  • The business is prohibited from resuming operations at the current alert level.

If an employee refuses to return to work and none of the above circumstances apply, before taking any action, the employer needs to be careful that they are abiding by the Health and Safety at Work Act 2015 (HSWA), public health guidance and meeting their obligations of good faith.

To ensure both of these steps are met, employers should first consult with their employees to determine the basis of their refusal.

A Suggested Guideline

The following is a proposed response to an employee refusing to come to work:

Consultation

As ordinary employment law continues to apply, if an employee refuses to come to work, employers are required to consult with that employee. Owing to the current environment, consultation may be over the phone, via email, or in-person but the important step is that the employer attempts to understand why the employee is refusing to return.

Reasoning

The nature of the pandemic has left many people with uncertainty and the employee may justifiably be feeling stressed and anxious about contraction of Covid-19.

If this is the case, then the employer should consider practical ways to address them, such as offering flexible hours or offering parking to avoid public transport. 

The employer could also discuss alternatives such as taking a period of annual leave until cases reduce further or the employee seeks medical advice and if required obtains a medical certificate to remain at home due to stress and anxiety and takes a period of sick leave.   

Alternatively, the employee may be refusing to come to work because they do not believe that their workplace is safe from Covid-19 contact. If the employee's concerns are valid, the employer should attempt to alter the employee's working arrangements to ensure that the employee is as safe as reasonably possible. If the employer has consulted with staff on the implementation of the safety plan in place, these issues should already have been addressed.

Employees may simply have enjoyed working from home and may wish to request more flexibility in how they work in the future. This should be addressed in the normal way in good faith, but ultimately when it is safe to do so, an employer will be entitled to ask employees to return to their previous working practices.

Disciplinary matter

If an employee's refusal to come to work is not based on any reasonable grounds, then this may give rise to a disciplinary issue.

In the event that disciplinary action is warranted, the employer should follow ordinary processes for misconduct. Please note that in the current environment, disciplinary action should be very carefully considered and we would suggest you take careful advice before proceeding on this basis.