The working from home dilema

To help ensure Government buildings are at full capacity, Cabinet Office minister Jacob Rees-Mogg urged civil servants to return to the office earlier this year. Given that COVID-19 related restrictions were removed in February, a full-scale return has already taken place across many sectors, despite the reluctance of some employees that have grown accustomed to flexible working.

Whilst it may not be feasible for construction businesses to offer flexible working to all employees, there are important legal considerations any employer should take care not to overlook. We speak to Sophie Georgiou at Buckles Solicitors about what happens when employees working from home refuse to return to the office.

Sophie Georgiou

What does the current legislation state?

Current legislation grants workers a limited right to refuse to return to the workplace on health and safety grounds, including where a worker has a reasonable belief that it would put them at risk of serious or imminent danger of which they could not be reasonably expected to avert.

If an individual has raised health and safety concerns and is then disciplined, dismissed or treated less favourably, there are specific statutory protections available to protect them.

Protected characteristics

Some individuals may have protected characteristics, such as a disability or pregnancy, which mean they have further legal protections. For example, an employee with severe anxiety may explain that their condition would be exacerbated by a requirement to travel to the office.

In such a case, it is advisable for the employer to seek medical advice, and if the employee is found to be disabled, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages faced by the employee.

Reasonable adjustments may include allowing the employee to continue working from home or changing the employee’s hours to avoid travelling at peak times.

Potential consequences

Those organisations that fail to take into account personal circumstances or health and safety concerns, put themselves at risk of serious financial and reputational damage. For example, an employer that ignores a protected characteristic and disciplines somebody for refusing to return could face discrimination claims, which can be costly and reflect badly on the business as a whole.

If an employer dismisses an employee who refuses to return to the workplace for a health and safety reason recognized by the legislation, an employer risks an Employment Tribunal deciding that the dismissal was automatically unfair, and awarding the employee uncapped financial compensation.

In Quelch v Courtiers Support Services Ltd, compliance analyst Mr Quelch was dismissed for refusing to return to the office, despite explanations to his manager that his cohabitee was clinically vulnerable. The Tribunal decided that this dismissal was unfair.

In reaching its decision, the Tribunal considered that Courtiers had failed to follow the Government’s guidelines that ‘businesses should make every reasonable effort to enable working from home as a first option’. Since Employment Tribunal decisions are fact specific, the fact that there is no longer any Government guidance to work from home is likely to be relevant if similar facts to Mr Quelch’s case were to arise today.

Create policies and seek legal advice

When consulting with staff about a return to the workplace, businesses should listen to any concerns raised and try to resolve them. Absent a protected characteristic or special circumstance, an employer may consider it necessary to make compromises in any event to simply retain staff, since workers may now expect flexible working patterns to continue following the COVID-19 pandemic.

Employers could consider introducing a hybrid working policy, to help manage employee expectations, whilst giving managers the flexibility to come to individual arrangements with staff members.

Employers have used such policies increasingly since the COVID-19 pandemic to allow employees to divide their working time between home and the office on a discretionary non-contractual basis.

It is still open to employees who have worked for their employers for 26 or more weeks to make a formal flexible working request. If accepted, this would ordinarily entail a permanent change to the employee’s employment contract.

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