My employees are refusing to come back to the office – what should I do?

Employees are required to obey their employer’s reasonable instructions, which would normally include attending work where the employer has put in place safe-working measures in line with government guidance.

However, ss.44 and 100 of the Employment Rights Act 1996 protect employees against detriment or dismissal where, in “circumstances of danger” that the employee reasonably believes to be “serious and imminent”, they

  • leave their workplace (or any part of it);
  • refuse to return to their workplace (or any part of it);
  • take appropriate steps to protect themselves or others from the danger.

Automatic unfair dismissal

A dismissal that meets the requirements of s.100 of the Employment Rights Act 1996 is automatically unfair. Employees do not need the usual minimum two years’ service to be able to bring a claim for automatic unfair dismissal in these circumstances. In addition, the statutory cap on the compensatory award does not apply where the automatic unfair reason for dismissal relates to health and safety.

What to do:

Take advice from an HR professional on this one before proceeding any further. They will want to know if you have met with the employee to understand their concerns, and will want to understand what measures you have put in place to protect the employee. Once they understand the facts fully, they can then advise you on the best course of action.

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