by Lefre de Burgh, Counsel at Ronan Daly Jermyn
As lockdown eases, and businesses are preparing to re-open workplaces under the Government’s Roadmap, how does an employer handle an employee’s refusal to return?
In conjunction with the Roadmap, the Government has published its “National Return to Work Safely Protocol” (“the Protocol”) which is mandatory in nature and applies to all workplaces, and will be enforced by HSA Inspectors. In addition to the Protocol, all existing statutory health and safety obligations, which apply to employers and employees, set out in the Safety, Health & Welfare at Work Act, 2005 (The SHAW Act), remain in force.
The Protocol outlines that office work should continue to be carried out from home where practicable. In terms of employees who will be returning to the physical work-place, the Protocol emphasises communication and collaboration (requiring a minimum of one “Lead Worker Representative” to be appointed, who is provided with training); the development of a Covid-19 response plan, including updated safety statements and health and safety risk assessments, which should take into account individual risk factors for each employee. Common examples of this are older workers or workers with a pre-existing health condition. Employers are obligated to review and revise existing sick leave policies where appropriate. The Protocol sets out an employer’s obligations with regard to hygiene and physical distancing and is a living document which may be amended from time to time as public health advice is updated.
The HSA has also now published some return to work templates and checklists in line with the measures outlined in the Protocol and these are available on the HSA website.
An employer is expected to facilitate at risk or vulnerable workers to work from home where possible. If that is not possible, an employer must ensure that at risk workers are preferentially supported to maintain physical distances of two metres.
Q: So, what if, having fully implemented the Protocol, the employer is faced with an employee who refuses to return to work?
The first question which needs to be examined by the employer is what are the reasons being given as to why the employee is refusing to return, and whether by working with the employee, the employer can successfully alleviate his/her concerns?
Q: What if the reason given is that the employee is living with a vulnerable person?
If the employee is healthy and is not in an at-risk category themselves, but is refusing to return as the employee lives with a person who has a particular vulnerability, the first thing to assess is whether this can be resolved by allowing the employee to work from home? If that is possible, then the employer should do so. If not, we would always advise attempting to resolve the employee’s concerns through good employee relations practices. Can you direct the employee to an Employee Assistance Programme, for support? Can you walk the employee through the measures you have put in place? Can you explain the basis of your risk assessment, specifically in the context of his/her unique circumstances? Can you put the employee in touch with Occupational Health to re-assure him/her? Are there any additional measures or facilitations that can be reasonably put in place, by the employer, (above and beyond those strictly required) in order to alleviate the employee’s concerns and/or support the employee?
Q: If all of those efforts fail to produce the desired outcome, can an employer force an employee to come back to work?
In theory, yes. “Failure to follow a reasonable management instruction” is a disciplinary matter and yes, in theory, an employer could seek to discipline such an employee. However, in the current exceptional circumstances, we would advise considering a lighter touch approach, in such circumstances. It is hard to envisage a situation where the Workplace Relations Commission (WRC) would not be sympathetic to an employee who feared returning to work, as he/she was living with a vulnerable person, at high risk from Covid-19 (due to age, pregnancy, disability, pre-existing medical condition or currently going through cancer treatment, for example). Seeking to discipline an employee for refusing to return to work, not only opens the employer up to a risk of WRC claim on family status grounds, but also potentially to a personal injuries case too. The HSE has outlined a list of those at very high risk and at high risk of Covid-19 here.
Something to consider may be whether there is any other way in which the employee can be facilitated? Could the employee take a block of carer’s leave or parental leave, for example, depending on his/her circumstances? Cases like these need to be assessed on a case-by-case basis, by the employer, with sensitivity and empathy for the employee’s concerns and personal circumstances.
Q: What if the employee has a sick cert. from his/her own doctor?
If the employee has been certified as “ unfit for work” (stress/anxiety about the prospect of returning to work) by his/her doctor, or alternatively has been certified as “fit to work from home”, due to a pre-existing condition, then the employer should have the employee assessed by its own Occupational Health advisors. However, the reality is that, even if Occupational Health assesses the employee as being “fit to work”, if the employee’s own GP continues to certify the employee as not being fit to return to the workplace, the employer then finds itself in circumstances where it has two conflicting medical opinions, and would need to seek a third opinion (at the employer’s expense). However, there is little reality to that in practice, and there is also a risk of a personal injuries claim by the employee arising out of stress/anxiety were the employer to seek to force the employee to return to work. Furthermore, if the employee is meeting his/her obligations under any Sick Pay/Leave Policy, the employee must be treated the same as any other employee on sick leave in that regard.
Q: What if the reason is that the employee is simply “worried”?
If an employee is simply in the category of “worried well”, and is refusing to return to the work-place, and the employer has made all reasonable efforts at engagement, it may ultimately be a reasonable approach to discipline that employee, after communicating with the employee as outlined above in an effort to re-assure them. Failure to discipline a non-compliant employee, where the employer has fully complied with the Protocol, has engaged with the individual employee as to his/her concerns, where there are no special or extenuating circumstances and the employee is not certified as “sick” or “unfit to work”, has the risk of causing employee relations issues for the employer, among their compliant employees who have returned to the workplace, under the provisions of the Protocol. In those circumstances, triggering the Company’s disciplinary procedure may well be the correct approach, but we would sound a note of caution that it should only be done having exhausted all other avenues as outlined above.
Q: What if an employee does not have access to childcare?
Again, the employer needs to engage with the employee on a one-to-one basis, in the context of his/her unique circumstances, to ascertain whether there are any collaborative measures which could be instituted to support the employee. It is highly inadvisable to discipline an employee who is being co-operative but whose circumstances are simply preventing them from returning, and who intends to return just as soon as circumstances allow them to do so. Hopefully, as matters evolve over the coming weeks, the issue of childcare will be addressed by the Government to allow employees to begin planning their return to the workplace in the same way as their employers are planning the return.
About the author
Lefre de Burgh is an experienced Barrister (BCL, BL) with extensive legal experience in Employment Law and Judicial Review, who holds a Master’s degree in Human Resource Management, (M.Sc. HRM).