Rebecca Bennett
Solicitor
Make an enquiry
Date Published:20 May 2021 Last Updated:22 Sep 2021

Can employers now request employees to return to the workplace?

Employment Law Advice

Monday 17th May marked the day that a number of restrictions were lifted in England. All restrictions are expected to be lifted in June. There is a sense that things are starting to return to, “normal”, but what does this mean for employers who wish for their employees to return to the workplace?

Requiring employees to return to the office

Employees should generally be ready to return to work when required by employers. However, in ensuring transparency, employers should be discussing a return to the workplace with employees to ensure that employees are given the opportunity to raise any issues or concerns that they may have and for the employee to provide reassurance that the employee’s safety is being taken seriously.

The guidance on the government’s website remains that employees who work in office environments should continue to work from home if they can until at least step 4 of the government’s roadmap (i.e. until 21 June at the earliest).

If working from home is not possible or if working from the office is more suitable for a particular employee (i.e. due to mental health difficulties with working from home), arrangements should be made to ensure that work spaces are designed to keep to social distancing rules (i.e. back-to-back or side-by-side working) and to reduce crowding in the workplace.

Can an employee be forced to come back to the office?

With the guidance remaining that employees who work in an office environment to remain working from home, it is unlikely that an employer can force an employee to return to the office if the employee is able to carry out his/her role effectively from home.

In different settings, it may be appropriate for employees to return to the workplace (i.e. hospitality settings). In this case, employers must clearly outline their expectations and set out the steps that they are taking to ensure that their employees are safe.

If an employee refuses to attend the workplace despite being requested to do so, his/her refusal could be treated as an unauthorised absence and may invoke the disciplinary process. If the employee’ reason for not returning is due to a genuine health and safety issue, there may be a risk of a constructive dismissal claim. You should consider this carefully before taking further action.

Can an employer insist that an employee has a vaccination before returning

The simple answer here is no, you cannot force an employee to receive the vaccine as it is the right of the employee to refuse the vaccine if he/she wishes.  You should instead encourage employees to receive the vaccine by consulting and communicating the benefits of the vaccine to the business and the country as a whole.

If you are an employer in a health care setting you may be able to issue a reasonable instruction to employees to have the vaccine as a refusal may put other vulnerable people at risk.

If you have a HR/employment related issue please contact our Employment Partner, Kate Brooks at kate.brooks@ellisjones.co.uk or call 01202 057754.