Managing employees who are reluctant to return to work

Returning to work after the COVID-19 lockdown eases may cause understandable anxiety for many healthcare practitioners. HR experts Croner Consulting provide guidance on managing this difficult transition.

As lockdown measures relax, employers in England have more discretion to decide where it is safe for their employees to work. Because of this, many employers have asked staff to return to the workplace. However, with the pandemic far from over, there is still a degree of considerable anxiety among employees over returning to the workplace.

Consider individual concerns

If staff refuse to return without a valid reason, it could be treated as a misconduct issue. However, this should be a last resort option. Instead, employers can consider individuals’ reasons for being hesitant to return, explain what has been done to minimise the risk to their health and, if they still refuse to return, consider whether there are still any risks present that you cannot reasonably prevent.

This is likely to be a difficult time for staff so employers should maintain regular contact with them, regardless of where they are working. Employers should also try to be as flexible as possible to assist with outside commitments such as childcare. Employers should remember that working parents do have the right to take time off for dependants in response to emergencies involving their children. This includes a reasonable amount of unpaid time away from work to deal with an unforeseen circumstance – usually no more than two days. Working parents also have the option to take parental leave – a period of unpaid leave to care for their children. Employees can take up to 18 weeks' leave in total for each child they have but it is usually limited to four weeks per year.

Unreasonable refusals

Where employees unreasonably refuse to return to work despite measures having been put into place, employers may wish to consider dismissing them – in which case normal employment law rules apply, even during the pandemic. However, some processes will need to be adjusted, particularly where face-to-face meetings with employees are usually required – e.g. formal disciplinary hearings – so meetings may need to be held virtually. It is best to take expert advice, as with any dismissal, to ensure the employee’s legal protections aren’t breached – such as an employee’s right to refuse to return to work if they reasonably believe that their work poses serious and imminent risk to their health. This is stipulated under section 44 of the Employment Rights Act.

Before considering dismissals, as a result of section 44 or otherwise, employers should always think about alternatives. Alternative options can include putting eligible employees on furlough to the extent that funding comes from non-public sources, unpaid leave or another form of leave provided under the contract of employment or collective agreement. Other options include annual leave, shift rotations, part-time working, adjustments to hours and duties. All these alternatives would need to be agreed with the relevant employees and any agreed alternatives should be temporary and reviewed at an agreed date, to see whether the employees’ positions have changed. It’s worth remembering that employers can also enforce annual leave by giving the legally required notice.

Promoting engagement with staff

For staff who do return to work but are still feeling unsure, it may be advisable to consider options that could promote engagement (following social distancing guidelines, where applicable) including working in partnership with relevant unions, opening up communication between them and their managers, and enabling involvement in decision making. The NHS website also suggests that healthcare employers can increase staff engagement by promoting and supporting personal development among staff and offering training where necessary.

Ultimately, employers are reminded that these are trying times for both employees and employers alike so dismissals should be a last resort option – alternative options should first be considered.