HR & LAW: WHEN AN EMPLOYEE FAILS TO RETURN TO WORK POST COVID-19

Updated: Aug 27, 2020

The global Corona virus pandemic and ensuing mass lockdowns has created an abundance of unforeseen and unprecedented workplace conundrums for employers. And there is another tough task looming: Asking people to come back into the workplace, in light of the realization that some people can comfortably deliver on their tasks from the comfort of their homes. While usually an employee refusing to attend work would be fair grounds for disciplinary and potentially dismissal, the pandemic has turned this hitherto employment law-gospel firmly on its head.



I wish I could say it was a simple answer, but it's so specific to the individual employee's circumstance that you can't determine what’s reasonable for either the employer or employee until you understand the specific nuances of their situation,” says Magdalene Mbithe, an HR and management expert. So what action can employers take without falling foul of the law if employees prefer to return to work? The answer lies in taking a deep look at the individual circumstances.

First and foremost, an understanding of why the employee doesn’t want to return needs to be obtained. Employers are just going to have to be systematic and really probe into employees' individual circumstances and understand exactly why and what the reasons are so they can work around it. “Sensible employers will already have a sense of what their workforce feels about returning to work by gauging opinions through surveys and factoring that into their planning for reopening the workplace”, Ms Mbithe adds. As such, a one-size-fits-all approach when dealing with employees reluctant or refusing to return to work could be “really misplaced”, says Ms Mbithe. She highlights that it may not be easy for some people to return to work, and that employers must factor in various considerations before making a decision.

Those considerations could include serious and documented health and safety issues, a single parent who cannot secure appropriate childcare or an employee with underlying health conditions. “An employee cannot be at a detriment for refusing to return to the workplace where they have serious health and safety concerns. From a legal perspective, if an employer decides to discipline or reprimand, they would be on tricky ground,” adds Ms Mbithe.


Proceed cautiously with disciplinary or dismissal action

While disciplinary action may have been the default position with staff refusing to attend work in the past, especially with the biometric technology that was really taking off to track staff physical attendance at work, the fine balancing act between employee and employer rights could make for precarious legal ground. “An employer can impose rules or make requests, but the flashpoint comes if the employee refuses to comply and calls the employer’s bluff,” Ms Mbithe says. “So what we’ve got is a relaxation of the employer’s contractual right to insist the employee attend the workplace,” she continues. In these circumstances, it would be unreasonable to force employees to report to work without a deeper understanding of their personal situations and reasons for seeking alternative work arrangements.

Don't rush into disciplinary action or dismissal.

You have all these different rights and it's a case of trying to balance them and work out which takes priority in any circumstances. Don't rush into disciplinary action or dismissal. It’s going to be very challenging to take action, especially if the employee has personal circumstances that prevent their return. Make a well-informed decision! However, just as employers must not jump to conclusions about an employee’s ability to return to work problem-free, if an organization has followed all government guidelines and ensured that risk for employees is minimized, the business needs to be prepared to conclude a staff member doesn’t have reasonable grounds to decline to return to work.

The employer should think very carefully about how to approach disciplinary proceedings. “If it's just because they don't want to return, then it is unreasonable on the employee’s part and it would be unreasonable grounds for refusal, and the employer needs to decide how to approach that,” says Ms Mbithe “Ultimately, it could end in disciplinary action for unreasonable refusal or failure to follow a reasonable management instruction. “However, if they are refusing on the grounds of not having childcare because of schools remaining closed, for example, then disciplinary action would be precarious.”

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