Can employees refuse to attend work due to concerns about contracting COVID-19? If the employee does not have any health conditions that puts them at a higher risk to contracting the virus, and their refusal to attend work fails to conform with Government guidance, then it could be argued that the employee is failing to follow a reasonable management instruction to attend work. Their absence would therefore be unauthorised.
This is a potential misconduct issue and would normally be dealt with through the employer’s disciplinary process. However, it is important to carefully consider the reasons for the employee’s refusal, certainly in light of public health advice, before any disciplinary action is taken.
What Should Employers Do If Employees Refuse to Attend Work?
If the employee is simply worried about COVID-19 and wants to remain at home, then the employer could deal with this as a disciplinary matter. However, many employers are sympathetic to employees’ concerns and have chosen to allow the employee to take unpaid leave instead. It is important to remember that unpaid leave is not a right and should be dealt with as a request that has been granted by the employer. This should be kept under regular review.
However, if an employee refuses to attend work due to a lack of reasonable measures to protect them against coronavirus , and is dismissed due to those concerns, the employer is at risk of an automatic unfair dismissal claim (no qualifying service required) under section 100 of the Employment Rights Act 1996. Section 100(d) states that an employee will be unfairly dismissed if:
“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”
Therefore, if an employee refuses to attend work, it is important to understand the basis for their concerns. If a genuine health and safety concern is raised, this should be investigated and dealt with. If the employee is simply generally concerned about leaving the house to attend work, whilst such absence may technically be unauthorised, it may be worth considering allowing the employee to take a period of unpaid leave.