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There are good reasons why employees may experience Covid-19 return to work anxiety and may not wish to return to work. Where do employers stand?

What you can do
It is first important that ensure you have followed Government guidance before requesting anyone to return to work. I’ve provided links to Government guidance below and Employer Solutions can provide a generic checklist on request.

Trust is critical in re-assuring employees, which means being open about the steps you are taking to protect them, the risks (I suggest you share your risk assessment) and being willing to listen to their concerns. Your willingness to accept further reasonable safety steps might help to overcome resistance.

We suggest you have an individual meeting with each employee via Facetime, or other conference software.

Explain the employee’s role in ensuring everyone is safe and your determination to take action if principles are violated.

Employees should be clear what you expect of them in terms of social distancing, the procedure if they feel unwell, and other practical measures they will need to follow such as handwashing, sanitisation of communal areas and equipment, etc.

Accept that there will be a period of adjustment to new ways of working, show flexibility over hours, be mindful of public transport concerns, and be prepared to show compassion towards those of a nervous disposition or who may have lost a loved one.

The risks to you as an employer:

Health and Safety implications
If you fail to follow the COVID-19 workplace health and safety guidance, then you may be subject to HSE investigations, personal injury claims or even prosecutions.

Constructive dismissal claims
Handled without sensitivity and skill, seeking to overcome an employee’s anxiety about returning to work could give rise to a resignation and then a constructive dismissal claim. Most constructive dismissals are unfair, see the next section.

Unfair dismissal claims
If you discipline an employee for failing to return to work, because they reasonably believe themselves to be in serious and imminent danger then you risk an unfair dismissal claim. This principle has not yet been tested in Tribunal (relative to Covid-19); but that may be a matter of time.

If fear of danger were proven, this would be an automatic day-one right – i.e no need for the employee to have 2 years’ service. Even if you can successfully defend such a claim, it will have a high opportunity cost and potentially legal costs.

Therefore, if you envisage taking disciplinary action towards an employee because they do not want to enter the workplace, please talk to us first.

Highly strung employees may find returning to work terrifying. If mental illness is a factor in a refusal to return, then there is a risk of a discrimination claim. This is a further reason to be cautious.

If you press an employee to return to work, then complaints about any failure to implement appropriate safety measures could mean that the employee is protected under public interest disclosure. An appropriate policy will help to protect you.

In summary
The onus is on the employer to take appropriate steps. But addressing genuine concerns and listening should resolve most resistance to a return. If you fail in overcoming return-to-work anxiety, there may be commercial advantage in giving an employee the benefit of understanding and leaving the matter until the current crisis has subsided further.

Government guidance

Malcolm Martin FCIPD

Author Human Resource Practice

Blogs are for general guidance and are not an authoritative statement of the law.