
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.
KEY
Higher risk
Low/medium risk
No/low risk
1) Employees generally (who don’t also fit under one of 2-9)
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination
2) “Clinically extremely vulnerable” (i.e shielding) employees
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Disability
3) Employees who have a shielding household member
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Associative disability
4) “Clinically vulnerable” employees (not shielding)
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Disability
5) Employees who have a clinically vulnerable household member
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Associative disability
6) Pregnant employees
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Pregnancy
7) Employees with childcaring responsibilities when shoolchildren/children at nursery are required to self-isolate
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Sex
8) Employees who don’t have a health condition but are anxious or frightened about returning to work or making the journey to work
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Disability
9) Employees not yet vaccinated or fully vaccinated who want to wait to return
Health and safety detriment/dismissal - Case by case basis
Whistleblowing - Case by case basis
Breach of contract - Case by case basis
Discrimination - Case by case basis
10) Employees who fear being harassed in the workplace because they are from a country with a high incidence of COVID-19
Health and safety detriment/dismissal
Whistleblowing
Breach of contract
Discrimination - Race
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.