Can you dismiss an employee who refuses to return to the office?

Can we require employees to return?

I’m often asked this question. Can an employer require a member of staff to work from the office? Assuming an appropriate health and safety risk assessment has been carried out and reasonable steps have been taken to minimise any risks identified, the general position is ‘yes’.

A potential hurdle, however, is the ‘special’ health and safety protection given to all employees, irrespective of their length of service, under the Employment Rights Act 1996.

The Act entitles an employee to refuse to return to work where they reasonably believe that they will be at risk of serious and imminent danger if they do so.

How do we assess if the employee has reasonable grounds?

Each case will need to be considered on its own, specific, facts.

In practice, employees who are more likely to hold such a belief are those who clinically vulnerable, those who have a mental impairment (for example, anxiety or stress) or those who have yet to be fully vaccinated.

Note: certain of those employees, above, may have additional legal protection – for example, in terms of disability discrimination.

To determine the reasonableness of the belief, it would be necessary to carry out a proper investigation, which would need to include, at the very least, discussion with the employee.

What practical steps can we take as an employer?

You can minimise the risk of an employee refusing to return by undertaking a number of practical steps. These include:

1. A full and proper health and safety risk assessment, which should give employees the comfort that the work-place is safe
2. Consider a phased return to work – many employers are gradually reintroducing office working starting off with 2-3 days and increasing to 5 days
3. Staggered working times – avoiding, for example, peak time travel on public transport
4. Dealing sympathetically with concerns raised. An employee may, for example, be suffering from a mental health condition which may make them more anxious about returning (but may also give them additional protection from being discriminated against on the grounds of a disability!)

Can we dismiss staff for refusing to return to work?

This is an area where employers must be extra careful. The reason is that whereas, normally protection from unfair dismissal only arises once an employee has 2 years continuous service, the ‘special protection’ cited above, protects employees from day one of their employment from being unfairly dismissed or being subjected to a detriment (such as a disciplinary warning).

So, dismissing someone for not returning to work may give rise to an unfair dismissal claim even if the employee is relatively new.

What if we suspect a staff member is trying to take advantage of home-working?

The answer here is to proceed with caution. If evidence of ‘game playing’ can be demonstrated, then disciplinary action, including dismissal, may be justified. This is an area where legal advice must be obtained.

Can we reduce salary for those who are refusing to return to the office?

As a general rule, no. A unilateral reduction in salary would amount to a breach of contract and could give rise to a claim for an unlawful deduction from wages and/or constructive unfair or wrongful dismissal.

In addition, a reduction in salary, for those who are refusing to return to the office on health and safety grounds, would also amount to a ‘detriment’ and could give rise to Employment Tribunal proceedings for compensation.

A reduction in salary could, however, be negotiated and, if the employee agrees, there would be no issue.