Risks of Sanctioning Employees Who Refuse to Work

By Lisa Rix - (Updated 23 July 2021)

As businesses begin to plan for employees’ eventual return to work, there are many questions which arise as to what risks exist and how to mitigate them. Employers should always try to resolve a refusal to attend the workplace informally first, but it’s also worth being aware of the risks to navigate if you do have to take more formal action such as withholding pay, disciplining or dismissing the employee.

From a legal perspective, we have indicated the level of risk associated with claims that may arise by different categories of employees. For a more detailed explanation of the risk levels of different categories of employees, see here.

Potential claims that can be brought against employers for sanctioning employees who refuse to return to work

KEY

 

1) Employees generally (who don’t also fit under one of 2-9)

 

2) “Clinically extremely vulnerable” (i.e shielding) employees

3) Employees who have a shielding household member 

 

4) “Clinically vulnerable” employees (not shielding)

 

5) Employees who have a clinically vulnerable household member 

 

6) Pregnant employees

 

7) Employees with childcaring responsibilities when shoolchildren/children at nursery are required to self-isolate

 

8) Employees who don’t have a health condition but are anxious or frightened about returning to work or making the journey to work

 

9) Employees not yet vaccinated or fully vaccinated who want to wait to return

 

10) Employees who fear being harassed in the workplace because they are from a country with a high incidence of COVID-19

 

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If you or your organisation would like more information about employees returning to work, please get in touch with your usual GQ|Littler contact or email info@gqlittler.com.