Last month, we wrote about what you can do if an employee refuses to return to the workplace post-lockdown. With creches not due to reopen for children of all workers until the final phase – and even then, on a gradual basis with restricted numbers – this is likely to continue to be a problem for employers. In this article we will discuss if an employer should keep the role open for their employee – and if so, for how long?
To recap briefly on our previous article, if you have an employee that does not wish to come back, the first thing you should do is consider whether or not that employee can work from home. This is still recommended for those that can, even if the workplace has reopened. If not, and if you have taken all reasonable steps to ensure that the workplace is safe, then, after communication with your employee, you can legitimately mark any missed days as unauthorised absences and take appropriate action.
However, given the highly volatile times we live in, the advice is to tread carefully. The Irish government has advised that all employers be as flexible as possible with employee requests. Threats of disciplinary action and dismissal should be the last resort. After all, apart from the fact that you may lose a good employee and have to invest in training someone else to take their role, you may well risk the reputation of your business. If you do go down this route, we advise you to stick rigidly to the procedure outlined in your employee’s contract or handbooks. Even if the original reason for disciplinary action or dismissal would withstand external scrutiny, failure to follow correct procedure may not.
The alternative to this is to leave your employee’s role open for a period of time agreed in advance with the employee. How long, though?
The answer is that it really depends on the reason for the refusal. For instance, when it comes to childcare, your employee likely has limited options. Although creches may be reopened, they will likely be only able to take in a small percentage of their usual numbers due to social distancing concerns. Although we can now visit other homes, an employee may not know of anyone who can look after the child, or perhaps the only relatives that can are in an at-risk category. Childminders will likely be operating on first come first served business, and again there will be limitations on numbers. Therefore, if lack of childcare is the issue, then keeping that employee’s role open at least the 20th of July is advised. In this case, you should discuss any options available with your employee. Options may include taking parental leave, parents leave, a career break or unpaid leave.
If your employee must look after a relative or family member then perhaps you can arrange for paid compassionate leave, paid time off to be worked back, or for them to take their annual leave all in one go while they stay at home. After this period of time they will be on unpaid leave, so it makes sense for both parties to reach an agreement on which date the employee is expected to return to work by.
The next question is whether your workplace can operate for that period of time without your worker. As most workplaces are operating with less staff currently due to health and safety measures, you may be able to allocate shifts accordingly.
If not, then you may need to hire someone to temporarily take their place. Whoever you hire should be given a temporary contract. However, remember that if you have agreed to leave your original employee’s role open until a certain time, then you cannot replace them permanently with your temporary employee without leaving your business open to external scrutiny – an unfair dismissal claim or equality claim if you replace a female worker with childcare issues with a man for example.
There is a potential for frustration of contract if carrying out the duties of the role becomes impossible, illegal, or there is no longer a need for the contract. However, it is rare for a contract to be considered frustrated in Ireland, as the thresholds are extremely high, so we don’t recommend relying on this.
If you have any questions, feel free to get in touch with Liam Barton, on lbarton@insighthr.ie
