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Omicron: What to do if your employee refuses to come in?

Once again, we are experiencing times of uncertainty.

Whilst news on the Omicron variant is unfolding more and more each day, what we do know, is that according to Professor Neil Ferguson, the Omicron variant appears to be doubling every two to three days. Scientists have also warned that Omicron is likely to become the dominant variant of COVID-19 within the UK, ‘in a matter of weeks’. For comparison, when cases of Delta have increased recently, the doubling was two to three weeks.

For some, the introduction of the tighter measures may instil a degree of anxiety, resurfacing difficult memories from the height of the pandemic. This may mean you are faced with employees refusing to come into work.

 

How do I manage an employee not wanting to come into work?

There are several questions employers may want to consider, including:

  1. Do my employees have to come to work if they think the workplace is not safe from Omicron?

Within Plan B, the new measure included ‘work from home if possible’: working from home is not possible for everyone, and every business. As an employer, you have a legal obligation to manage any health and safety risks to those affected by their business, including their employees. Employers should therefore carry out a comprehensive risk assessment that includes the risk from Omicron and take reasonable steps to mitigate the risk. (Details of which can be found at https://www.hse.gov.uk/risk/)

Safety measures you may wish to review could include:

  • Minimising visitors
  • Improve ventilation
  • Adopt a one way system
  • Additional cleaning
  • Encouraging additional handwashing and sanitising
  • Face Coverings
  • Work place testing
  • Social distancing

The Employment Rights Act 1996 entitles employees to stay away from the workplace where they reasonably believe that they will be at risk of serious and imminent danger by returning to work. Sections of this act afford the employee specific protection if they are dismissed, disciplined or otherwise subjected to a detriment as a result of having reasonable health and safety concerns and raising them with the employer.

 

  1. If I have implemented all reasonable measures to ensure the safety of my staff, but some staff say they don’t feel comfortable returning to work- can I dismiss them?

Prior to bringing any disciplinary proceedings, you should always investigate the reason for someone’s reluctance to come back to work. There may be a legitimate reason that is not immediately apparent. Employers should always ensure that individual risk assessments are carried out, with consideration given to reasonable adjustments that can be made.

In circumstances where an employee is clearly concerned about their health and safety, or that of a loved one, any decision to discipline or dismiss them because of this could result in a potential claim for unlawful detriment, unfair dismissal or even unlawful discrimination.

Where an employee holds a reasonable belief that that they or their loved ones will be at risk of serious and imminent danger by returning to the workplace –there is no qualifying service required.

 

  1. If I want my staff to return to the workplace, how much notice should I give them?

No notice is required, however, 48 hours is deemed reasonable.

 

  1. I have an employee who is happy to return to work, but is worried about using public transport. How do I approach this?

Try to come to an arrangement, maybe suggest they are able to commute to work during non-peak hours? Or, consider private transport taxi or a company bus as a solution.