While some people do not like to work from home and are keen to get back to their workplace, others may be anxious about an in-person return – either because of Covid or other reasons such as poor mental health.

Whether an employer can demand that you return to the workplace does not necessarily have a definitive answer. It will usually depend on individual circumstances.

An employee’s contractual obligations when working from home

If, as an employee, you refuse to go back to your workplace when requested, your employer could technically treat your absence as unauthorised. This would mean following internal disciplinary procedure unless you have a genuine medical reason for not returning.

It is worth checking the terms of your employment contract. It may clarify what counts as your ‘usual place of work’ and the business’ stance on working from home.

Employer’s commitment to workplace health and safety

All employers have a duty of care when it comes to employee health and safety. They must implement measures to ensure workplace safety.

The safety measures required will differ, but employers must start by carrying out a risk assessment.

Post-pandemic safety considerations

Social distancing measures

Depending on the physical space and personal interaction involved with the work, this may mean:

• avoiding desk sharing
• establishing a one-way system
• minimising the risk of crowding
• staggering working hours or lunch breaks
• ensuring enough space between workstations.

Personal protective equipment (PPE)

Employers should consider whether this is appropriate. If so, they should provide equipment of adequate quality, as well as instructions on how to use PPE safely and properly.

Hygiene

Employers may need to consider ventilation and extra cleaning of communal areas, ensuring there is plenty of hand sanitiser, and that workplace areas are frequently and thoroughly cleaned.

Can I refuse to return and work from home instead?

The first consideration before an employer can insist on a return to work is whether appropriate health and safety measures have been adopted.

An employer cannot dismiss employees for raising a health and safety issue. If an employee is treated unfairly, dismissed, or resigns due to raising a concern, they will be entitled to bring a claim against their employer.

What if I cannot come to an agreement with my employer?

Before refusing to go back to work or resigning, it is important to discuss your health and safety concerns with your employer.

Any tribunal subsequently deciding the matter would want to know that an employee’s fears were reasonable and genuinely held. A tribunal would also take into account how an employer responded.

If the employee’s concerns were both genuine and entirely reasonable in the circumstances, and the employer chose to ignore them and / or dismisses the employee, the tribunal is more likely to find the dismissal unfair.

Concessions an employer may be willing to grant

Flexible working

Employees may make a request for flexible working. To apply, employees need at least 26 weeks’ service and can ask only once in any 12-month period.

Reasons for turning down an application must be permittable business reasons, such as cost or performance issues.

Request for a reasonable adjustment

Employers have a legal duty to make reasonable adjustments to remove, reduce or prevent any disadvantages that disabled workers face. This includes mental and physical disabilities.

If you are a disabled worker and have been working from home during the pandemic, a request to continue working from home may qualify as a ‘reasonable adjustment’.

Shielding

If you have genuine medical reasons, supported by your GP, it may be reasonable for you to continue working from home. Alternatively, it may mean you qualify to request a reasonable adjustment as above.

Can my employer force me to have the vaccine rather than work from home?

This will depend on the sector you fall within.

It is now compulsory for certain healthcare and care home staff to be vaccinated. If you do not fall within one of the compulsory categories, your employer cannot force you to receive a Covid vaccine.

However, not being vaccinated may be a circumstance that is considered at tribunal when deciding whether an employer behaved reasonably when insisting on a return to the workplace, or an employee was being reasonable in refusing to go back to the workplace.

Obtaining legal advice regarding a decision to work from home after lockdown

The pandemic has created several new challenges for both employees and employers.

With a global health crisis that has necessitated greater flexibility in employment arrangements, comes the need for closer scrutiny of contractual arrangements, as well as vigilance on the part of employers to ensure business needs do not result in conflict with employees that leads to a tribunal investigation.

At Springhouse Solicitors, our expertise in all aspects of employment law means you receive advice which is accurate, reliable, and specific to your situation.

For more information on how we may be able to help you, get in touch today.