7 September 2021

Returning to work as Covid restrictions are lifted

By Anissa Hallworth, Director and Head of Employment Law, Hayes + Storr.

The past 18 months has seen many employers struggle to keep their businesses open whilst also trying to keep staff and customers safe from Coronavirus. While flexibility has been key, it has also been important to update and comply with frequently changing health and safety policies.

The government expects and recommends a gradual return to the workplace over summer, and is no longer instructing people to work from home if they can.

Managing the Covid risk in the workplace

Since the removal in July of most Covid restrictions, employers are required to make their own informed decisions about managing coronavirus risks. Many employers are likely to keep Covid-secure measures in place for some time, but employers may find that compliance begins to drop off among certain employees.

Employers will need to review measures regularly to assess if these are still a proportionate response to the identified health and safety risks.

Where the measures are proportionate, employers may be able to sanction employees who refuse to comply under the disciplinary process. To do so fairly, employers need to have made the measures clear to employees.

Managers must lead their teams by demonstrating compliance to avoid morale being eroded by a ‘one rule for us, another rule for them’ approach. Employment tribunals may also consider that this sends mixed messages and undermines the fairness of disciplinary sanctions. Similarly, if colleagues are treated inconsistently then an employment tribunal may find that the sanction is unfair.

Can an employee be dismissed for refusing to come back to work?

The Employment Rights Act 1996 entitles employees to stay away from the workplace where they reasonably believe that they will be at risk of serious and imminent danger by returning to work.

Acas’s new advice is clear that some people may not feel that they are able to return to work due to worries around catching the virus, childcare responsibilities, or they could be an extremely vulnerable person or live with someone who is. In any of these situations, an employer should listen to staff concerns and discuss options which work for both employer and employee.

It may be possible for an employee to take time off as holiday or unpaid leave, but an employer does not have to agree to this. If someone refuses to attend work without a valid reason, then it could result in disciplinary action.

Can an employer insist on vaccination?

There is currently much in the press about whether businesses can choose to adopt a ‘no jab, no job’ policy. Outside of sectors like health and social care, it would be highly risky to discipline or dismiss an employee who refused to be vaccinated. However, it may be possible to insist on this during the recruitment process. Although there is a raft of legal requirements to consider, including data protection, restrictions on asking health-related questions in recruitment, human rights, and discrimination.

Keeping customers happy

An employee who breaches customer rules could be disciplined. A recent employment tribunal found that it was fair for an employer to dismiss an employee for failing to wear a mask at their client’s premises, in breach of the client’s site rules (Kubilius v Kent Foods Ltd [2020]).

Capability or conduct

If an employer is having a problem with a particular member of staff, they will need to be clear at the outset whether the problem arises from a conduct issue or is due to capability.

For example, if someone has returned to work with long-Covid and is unable to perform the same workload that they previously undertook, then this is an issue of ill health and capability, and you should not use a disciplinary process.

As a rule of thumb, it comes down to the employee’s control; if they are capable of doing their job properly but have not done so, it is more likely to be a conduct issue. For example, if a member of staff is refusing to return to the office without good reason.

The basics of a fair disciplinary process

Following an unfair process can make a dismissal unfair, even if an employer has a sound, legal reason for the dismissal. The Acas Code of Practice on disciplinary and grievance procedures sets out the minimum procedure employers need to follow, and the Acas Guide on discipline and grievances at work provides helpful detail. Employers should also follow their own disciplinary process if they have one.

What happens if an employer gets it wrong?

If an employee has worked for an employer for at least two years, they can bring a claim of unfair dismissal in the employment tribunal. Employees with two years’ employment can also resign in response to an unfair process and claim constructive dismissal. If an employer fails to follow the minimum requirements of the Acas Code of Practice on disciplinary and grievance procedures, the employment tribunal may increase any compensation to the employee by up to 25%.

Employees with less than two years’ employment who can show that they were treated unfairly due to a protected characteristic, such as a disability or their ethnicity, may be able to succeed in a discrimination claim. This is a right from day one of employment.

Points on the disciplinary process for employers

• Having established that the disciplinary process applies, an employer must make sure their allegations are clear and sufficiently detailed, so that the employee understands the case against them.
• Keep a more senior manager or chair of the company out of the earlier stages of the process so that they can hear any appeal.
• Where possible, ensure managers have the time and skills to deal properly and promptly with the process.
• Be careful about suspending an employee. This is only appropriate if the allegation is of serious misconduct and a tribunal would consider it reasonable, for example because of a potential threat to other employees if they remain at work.
• Sometimes at the disciplinary meeting it becomes apparent that a potentially significant issue needs to be investigated further. Consider postponing the meeting to obtain this information.
• Be alert to any potential disabilities that may have contributed to the employee’s actions.
• In deciding the sanction, try to be consistent with similar past disciplinary action.
• Finally, make sure your reasons are clear if you impose a disciplinary sanction, for instance, in the outcome letter explain why you preferred one version of events over the other.

As with any disciplinary, employers need to carefully consider the employee’s explanation before deciding on the sanction. The appropriate level of sanction will depend on the seriousness of the non-compliance given the nature of the employee’s role. We strongly recommend that employers seek legal advice before deciding on the disciplinary sanction.

For further help and information

Please contact Anissa Hallworth, Director and Head of Employment Law on 01263 825959 or email law@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.