Sometimes, unforeseen events such as pandemics or periods of public disorder create risks that employees perceive as threats to their well-being.
Even when the event itself has passed, one or more employees may still refuse to return to work because, they believe, it still isn’t safe.
If, despite your best efforts staff are still reluctant to attend work there are some key things to bear in mind, and approaches you can take to try and resolve the situation.
Employee’s rights and legal protections
Firstly, it’s important to keep in mind the legal protections afforded to employees in these situations.
The relevant legislation here is Section 44 of the Employment Rights Act 1996. Under the Act, employees have the right to refuse to attend work or leave the workplace if they reasonably believe there is a serious and imminent danger to their health and safety.
Employees are protected from a detriment or dismissal resulting from such refusal.
With this in mind, consider the following steps when dealing with staff who refuse to work:
Review risk assessments and communicate any measures taken
As an employer, your primary duty is to ensure the health and safety of your employees. This involves regularly revisiting your risk assessment to keep it current and following the recommended safety practices relevant to your workplace. Evaluate whether additional measures could enhance workplace safety. Are you confident that no further actions are needed? It’s important to share this information with your employees too, including the assessment results and the steps taken to reduce risk. This not only reassures them that you are providing a safe work environment but also forms part of your legal duty as an employer.
Address concerns directly but be sensitive
When an employee raises concerns, take the time to speak with them and gather all relevant information. Approach the conversation with an open mind and with care and understanding. Respond to their concerns sensitively and in a clear and professional manner, ensuring you don’t overlook or minimize their worries.
Is there a mutually agreeable solution you haven’t considered, e.g. unpaid leave?
If you are unable to put the employee’s mind at ease despite taking all reasonable and practical precautions, consider whether their refusal is reasonable and determine next steps accordingly.
Consider options like paid leave, unpaid leave, or the use of accrued annual leave to find a mutually agreeable solution.
Could an escalation in your process shift their perspective?
If you are certain that the workplace is safe, but the employee still refuses to work, it may be necessary to begin a formal process. You should communicate the reasons for this clearly and proceed in line with Company policy. In many cases, issuing a formal warning can prompt a change in the employee’s behaviour. This step often helps the employee understand the seriousness of the situation and can shift their perspective, especially if emotions are running high.
If you are unsure about whether to proceed with formal action, get in touch with our employment lawyers who can provide expert advice tailored to the individual situation and support you through the process.
Open an Investigation in particularly challenging situations
As ever it’s important that you keep accurate records and demonstrate that you have followed your procedures and made your best efforts to address the problem.
In particularly challenging scenarios launching a formal investigation will help you mitigate against any legal risks and provide a clear pathway to ensure appropriate action is taken.
In some cases, it may be beneficial to call on some outside assistance to provide an independent, objective, and legally sound assessment of the situation.
Vista’s team of specialist workplace investigators is often called in to support with situations like this, particularly when the subject is sensitive, the issues are complex or involve concerns raised about peers or senior colleagues, or when there is simply too much to do.
Disclaimer: The information and advice provided in this blog are correct at the time of publishing. Employment law is subject to change, and while we strive to keep our content current and accurate, we recommend consulting with one of our legal professionals or checking the latest regulations via official sources for the most up-to-date information. Vista Employer Services is not responsible for any actions taken based on the information provided in this blog.