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Can you fire an employee for not returning to the office?

Written by Marcin Durlak on Wednesday, 08 September 2021. Posted in Employment law, HR, Legal, People

Although many SMEs have figured out a new approach to their working days, a return to the office can remain a contentious issue amongst employees.

Can you fire an employee for not returning to the office?

Although many SMEs have figured out a new approach to their working days, a return to the office can remain a contentious issue amongst employees. Some employees may be afraid to return due to health concerns and others may be reluctant because they've enjoyed working effectively from home. Yet you could be left with an empty office and miss out on the collaboration and culture that comes from working in-person. But being distrustful and inflexible with employees may also breed resentment and low morale. 

It’s fair to say that companies that adopt a more hybrid working policy – i.e. a mix of working from home and the office may see higher engagement and less rule-breaking. However for employees who refuse to come into the office altogether, what powers do companies have to encourage them in? Can businesses use forceful tactics, including the threat of disciplinary action? 

What to do if an employee refuses to come into the office

The current guidance on working from home for those clinically extremely vulnerable individuals, provides no rights for employees to work from home. Saying that, there remains shielding guidance in place, and employers have a legal duty to protect their employees. For individuals who don’t wish to come to the office because they were previously shielding / clinically vulnerable to the effects of Covid-19, it’s worth sitting down with the employee to understand their concerns / address any misgivings and devise a plan. 

As an employer you will still need to consider whether their whole role can be performed at home. It’s important to come up with a solution with the employee rather than imposing it – whether that’s allowing them to work from home for the foreseeable future or on a permanent basis.  

Other employees may also have a disability or suffer from physical and mental health conditions which made it difficult (before the pandemic) to work from the office. As part of an employer’s duty of care, reasonable adjustments extend to homeworking as well as the office. Additionally making sure the office is a safe environment still for all (adequate cleaning, ventilation, social distancing as well as enforcing self-isolation rules) is important. Consider the existing issues you may have in the office with accessibility too.

Consider offering bespoke flexible working arrangements where possible too. Assess why you need people back in the office, the positives and how the arrangement would work so everyone benefits. Communicate this to all employees, make sure it’s practiced by managers but be willing to have conversations on an individual level to address any misgivings. Even having a flexible and hybrid approach to work needs a structure and needs to be managed carefully. Try to make it a collaborative approach, be open-minded and be willing to listen to employee’s worries about coming in. Working together on a working strategy will more likely be adopted. 

It’s also worth incentivising employees (for those it is safe) back into the office, where possible, by offering social events – free breakfasts, lunches out, sports days. Many people don’t like to miss out and social events have the added benefit of getting people back into the office (helping boost that spontaneous collaboration and camaraderie you missed when working from home). 

That being said, it will be challenging for SMEs with an employee who isn’t willing to come into the office at all and are not engaging in conversations. Before considering disciplinary procedures or docking pay it’s worth seeking legal advice. You could potentially fall foul of discrimination laws and face an unfair dismissal claim. Remember patience is a virtue. Trying to get to the bottom of why an employee is refusing an office return altogether is worth exploring in more detail before clamping down on them.

Getting employees back into the office following 18 months of the pandemic is a challenging feat, and every business is taking their own approach in line with the law. Being flexible and considerate of employees concerns about working from the office part or full-time will be key in creating a successful working policy. Trusting employees, engaging them in conversations and not threatening them with disciplinary action will be more likely to get them on board with your ideal way of operating as a business.

About the Author

Marcin Durlak

Marcin Durlak

Marcin Durlak is the Managing Partner at IMD Solicitors LLP - a multi-national full service law firm and a leading provider of legal services to international businesses and communities throughout England and Wales and abroad

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