When it was announced that Ireland would begin easing Covid-19 restrictions on the 18th of May, the news was bittersweet. Businesses that could reopen in one of the earlier phases breathed a sigh of relief. This relief, however, was short-lived. It soon became clear that, for many businesses, the return to work post-lockdown was going to require a lot of preparation and the implementation of stringent health and safety measures. Since then, business owners have been carefully planning and investing significant amounts of time and money into their re-opening.
Employees who were laid off during the closures are facing the prospect of re-entering a changed workplace. Tensions will no doubt run high as workers adapt to strict hygiene controls and health and safety measures. The return to work also means employees will no longer be entitled to the Covid -19 Unemployment Pandemic Payment of €350 per week. Part-time employees and those on minimum wage may therefore see a decline in their income. Even for higher paid employees, the fact that we are in the middle of a pandemic situation causes a lot of apprehension about returning to work. A savvy employer will recognise this and try to make the transition back to work as smooth as possible. However, it is already clear that there are a proportion of employees that will either be unable or unwilling to return to the workplace.
As an employer, you have a duty of care for your employees, yet you also need to ensure you have an operational workforce. If you are faced with an employee that refuses to return, how you handle it now may well face external scrutiny later.
So, as an employer, what steps should you take to handle such a situation properly?
#1 Dig a little deeper
Different situations will need to be addressed in different ways. It goes without saying then that the first step is to truly understand the source of the issue. There are many reasons why an employee may not wish to return to work. In addition to the fact that the employee may actually have less of an income when they return, and the fact that they will likely be entering a tense environment while they and their colleagues adapt to health and safety measures, there are many other factors that may be feeding in to their refusal. Are they fearful for the health implications for themselves or their family? They may have young children and no one who can look after the children while they are at work. Perhaps they are over 70 and so still legally required to cocoon. Do they rely on public transport or lift shares for their commute? Or, perhaps they feel they can successfully fulfil the duties of their role remotely. All of these are issues which must be identified, so get on a phone or video call with your employee and find out what is their reason for feeling this way.
#2 Consider and discuss alternative arrangements
So, you’ve found out the reason why your employee does not wish to return to the workplace. Now what?
The first thing that you should consider is whether you can do anything to facilitate their return. If, for instance, your employee is concerned as they have an underlying health condition, then government advice is that you “must make sure that they are preferentially supported to maintain a physical distance of 2 metres” (Gov.ie, 2020). This could mean that your employee has a designated area away from other employees or the public. However, it is very important to note that you must respect your employee’s right to privacy. Will the measures that you put in place to protect your employee mean that they are singled out as having an underlying condition? ISME (Irish Small and Medium Enterprise Association) recommends that any employer in this situation seeks advice from the Data Protection Commissioner.
Section 16 of The Employment Equality Act 1998 dictates that:
“ The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.”
Does an underlying health condition which would otherwise not prevent an employee from fulfilling the duties of their role become a disability during a pandemic? Employers must carefully consider if there are extra steps that they can take to accommodate a vulnerable worker’s return to work. Although the wearing of masks is not yet a legal requirement in most workplaces, is this something you could roll out in your workplace? What if another employee refuses to wear it? If your employee usually shares a lift to work with another employee, then have you considered alternative options for public transport? Do the transport options suit your employee’s usual working hours and if not, can you readjust their schedule?
Should your employee have a valid reason for refusing to return that you cannot accommodate (such as a lack of childcare), then you need to have an open communication with them about when their situation is likely to change. How has the situation been handled until this point? Can you continue the same arrangement until it is possible for them to return? Is there another option available if not? If your employee fulfils a role that is essential to the running of your business and they cannot fulfil it because of childcare issues, can your business afford to hire someone else temporarily? Employers need to be aware of potential pitfalls regarding redundancy situations being deemed discriminatory. Given the unprecedented current situation, any business owner or HR Manager in need of support is advised to seek professional advice.
#3 Know when to pull rank
Despite your best efforts to mitigate any risk and accommodate their needs, your employee may still refuse to come back to work for a reason that you do not deem to be valid. In this case, and if there is no way that they can fulfil their duties from home, you can inform your employee that they are obliged to attend otherwise it will be marked as an unauthorised absence. Should your employee still refuse to attend, and they are marked as having an unauthorised absence, then you should follow the correct disciplinary procedure as dictated by the policy in place at your business. Before going down this route, you really need to make doubly sure that you have followed all the guidelines required by law. Any action that you take needs to be considered and appropriate in case of external scrutiny down the line.
Of course, you really need to make sure that you have an open dialogue with your employee in order to fully understand their reason, which is why the communication piece is so important. As an employer, you can only go on what your employee tells you, but their reason may be multi-faceted, or they may have assumed you knew certain details already. Remember, taking a heavy-handed approach might result in the resignation of a valuable staff member. No employer should take a short-term approach to this issue. Consider giving the employee an unpaid period of absence, parental leave or a career break and still retain the skill level in the business for the future.
While we hope of course that you do not find yourself facing this issue, it is unfortunately likely that many employers will. If you need any advice or a confidential chat, then please do get in contact with us via email or on social media.
