With hopes rising that lockdown will soon come to an end, employers are naturally looking to get back to normal. For most this means ending furlough agreements and, where appropriate, getting employees back to work.
Whilst many employees are desperate to get back to work, others may have been affected mentally and might feel nervous or overwhelmed – and some are flat out refusing to come back.
The good news, contrary to the beliefs of most companies, is that the law is on the side of the employer. You are entitled to ask employees to work in the way that best suits your business, both during furlough leave and after. If this means coming back to the office, then that is what you are entitled to request. However, with the suggestion that post-furlough, the government may pass regulations to continue to oblige employers to allow staff to work from home if at all possible, each employee’s situation first needs to be considered properly and objectively, on a case by case basis.
If someone simply does not have the IT, at the moment employers are obliged to help set this up where feasible (and indeed this obligation may continue as well). If it really is not possible to supply the necessary infrastructure, then that employee cannot work from home. Post furlough, they will have to come back.
The hardest employees to assess are those who are not performing. These are best approached by considering above anything the needs of the business.
Objective and justifiable reasons are, for example, that working from home is having a detrimental effect on productivity, colleagues or on turnover. It might be difficult to communicate with staff, or you may not be able to monitor their day-to-day activities. Those who do monitor may notice that certain employees are not dedicated to the task in hand whilst at home. These are all justifiable reasons to ask staff to come back.
If they do object, stating they have a ‘right’ to carry on working from home, evidence can then be provided to prove why they cannot. In the event they continue to be obstructive, this becomes a disciplinary matter, for which employers need to take advice as to the process to be followed.
Those who have mental health issues or are nervous about coming back will need a bit more care and it is advisable to take advice as to whether they come under disability discrimination law, but essentially it’s still a business decision and if the business is not working as well without them, then they should come back.
About the Author
Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.
Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. Philippa qualified as a solicitor in 2005 after working for 13 years in the media, most notably being part of the start-up team for two national cable television stations in the 1980s and 90s.
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