Can my employee refuse to return to the office?

With work from home guidance now lifted, and the pandemic seemingly in a more stable phase, an increasing number of employers understandably want to see their employees back in the office.

However, not all employees are that keen on the idea, particularly when they have been working happily from home for some time.

Concerns about catching covid, mental health issues or childcare responsibilities can all affect how employees feel about returning to an office environment on a full-time basis.

And from an employer's perspective, it's not always easier to determine the difference between a justifiable and legitimate reason and a mere preference.

On what grounds can an employee refuse to return to the office?

Under the Employment Rights Act 1996, an employee only has a legal right to stay away from work if they reasonably believe that doing so would put them at risk or in serious and imminent danger.

In terms of catching Covid 19, which of course many people worry about, this might include employees who are:

• Clinically vulnerable;
• Living with someone who is clinically vulnerable;
• Unvaccinated;
• Suffering from a long-term mental or physical illness;
• Disabled;
• Pregnant

In addition to the above, employees who have childcare responsibilities may also be reluctant to return to work in an office environment on a full-time basis.

If the employee is disabled, then the employer has a legal duty to make reasonable adjustments which in some cases can include working from home.

What legal protection does someone refusing to come back to work have?

Employees have certain, specific legal protections if they raise a reasonable health and safety concern and are disciplined, dismissed or treated less favourably as a result.

Falling into one of the categories listed above doesn't necessarily mean refusing to return to work is reasonable but an employer must give it careful consideration to avoid an unfair dismissal or discrimination claim.

What should I do if an employee refuses to return to work?

Every case should be looked at on an individual basis, considering the employee's personal circumstances and reasons for not wanting to return. First, employers should ascertain the reason behind not wanting to return to the office and discuss any concerns with the employee in question.

It may be possible to make adjustments to the employee's role to enable work from home a few days per week or to offer them an arrangement that works both for the business and employee, such as a flexible working agreement. By doing this, the employer will be retaining staff and ensuring they have a happy workforce.

However, if these options are not feasible for the business, there are other options available if an employee refuses to return without a good valid reason.

What should I do if my employee does not have a valid reason for returning to work?

In this case, they are under a contractual obligation to return to work, in their previous role and in their usual workplace, in accordance with their employment contract.

If an employee fails to comply with an instruction from their employer, they could face disciplinary action. Therefore, the employer can consider disciplinary action for gross misconduct in line with their own disciplinary policy.

However, taking disciplinary action such as dismissal against an employee who has genuine concerns for not returning to work and more than two years' employment service, is likely to be unfair in cases where the business has failed to take steps to understand and address those concerns.

This is a complicated and currently very sensitive area of the law, and specialist legal advice from our employment team at Wards Solicitors, tailored to your specific circumstances, is highly recommended.

Get in touch

Solicitor, Laura Ramos, is highly experienced and part of Wards Solicitors' specialist Employment Team. She specialises in all areas of employment law, including Employment Tribunal claims, with a particular focus on employment disputes. She also provides HR support to businesses.

Email Laura: at Laura.Ramos@wards.uk.com

Ring Laura: 0117 929 2811