Employees fearful of returning to work? Probe reasons with caution

How far can employers intrude into employees’ private lives to investigate whether their fear of returning to work is genuine? So, they’re worried about being Covid-safe and they won’t use public transport, but they’re out and about in pubs and other crowded spaces at the weekend.

There is no doubt there is a general reluctance to return to the office and the latest data on this has been highlighted by Personnel Today in their article ‘Reluctance to return to office felt by most businesses’. The research by XpertHR shows 97% of UK organisations have deployed some form of hybrid working, despite employee reluctance to return to the workplace. They say the vaccination status of colleagues was one of the main reasons behind the reluctance to return – that accounted for a quarter. Other factors were a preference to remain working remotely, concern about Covid-19 cases in the local community, and wanting to avoid public transport. 

So, it’s clear from that data that there’s a mix of reasons why employees want to stay at home but the two that match what we’ve been seeing are the preference to work remotely and wanting to be Covid safe. From the employer’s perspective, most are allowing some remote working, but wanting employees to come into work some, of the time. That becomes tricky when the employee says they feel unsafe using public transport but they freely go into pubs and crowded places which rather undermines their position. This is currently one of the issues clients are grappling with so let’s hear more about this from Anne Sammon who has been advising on this. Anne joined me by video link to discuss how managers should handle it. I started by asking if this is a misconduct issue:

Anne Sammon: “Potentially, yes. What we're looking at here is a failure to follow a reasonable management instruction. So, I've asked you, employee, to come into the office and you're refusing to do so and then we then end up in a kind of disciplinary process of well what is the basis for the employee refusing to come in and are they behaving in a reasonable, or unreasonable, manner? It’s that piece where we start to have the ability to ask questions about how are they feeling about COVID and anxiety more generally, rather than just the workplace?”

Joe Glavina: “This looks to me like a bit of a minefield for managers, especially if they feel someone in their team isn’t towing the line and returning to work as they’ve been asked to.”

Anne Sammon: “Yes, and I suppose it's one of those situations where the investigation is really key and it's really important that employers don't overstep the mark in terms of that investigation. I've been speaking to clients who are keen to say, well, can we appoint a private investigator, for example and I think at the outset that is definitely a step too far. You need some real tangible information to be able to start thinking about whether this is appropriate to kind of start to properly intrude into someone's personal life in that way. So, I think at the outset of your investigation you're wanting to probably speak to the employee and understand their perspective and that's where those questions about, well, okay, so you're anxious about coming into the office, what is it that's causing that anxiety? Is it the office itself? Is it public transport? So getting to the root of what the issue is, and then trying to understand whether that issue is genuine.  So is this an employee who is who is genuinely cocooning themselves at home, not going out, not seeing anyone, avoiding shops, etcetera? Or is this someone who is saying I'm anxious about coming into work, but then is attending football matches at Wembley Stadium for example?”

Joe Glavina: “So what about the situation where the employee has a role which requires them to be in the workplace either all or some of the time, but the employee says they’re too anxious to return, but they also avoid pubs and public transport so they bare at least being consistent. What, if anything, can the employer do in that situation?

Anne Sammon: “So I think most examples of that, where it's where it's a genuine level of anxiety, there are a couple of things that that you probably want to be thinking about. The first is, depending on how long lasting that anxiety is, and the impact that it's having, it looks to me like if someone can't leave the house that's a fairly significant impact and we're probably into the realms of it being a disability, depending on that kind of long lasting piece and whether it's expected to or has lasted 12 months or more. So we just have to be a little bit careful because we've got the obligation to make reasonable adjustments. But, if we've decided, and there is a really good business rationale for why that individual needs to be in the office, then we are potentially into the territory of ‘some other substantial reason’ and one of the really important things that employers will need to be thinking about is, well, are their alternative roles within the organisation that maybe could be home-based that we could offer as a way of avoiding a dismissal situation?”

On the subject of employees returning to work, in case you missed it, do be aware of the recent decision of the London Central Employment Tribunal in Follows v Nationwide Building Society. The message there is be careful about insisting employees to return to the workplace without checking carefully the reasons an employee might give for not wanting to return. That’s because insisting they must return could amount to indirect associative discrimination. Anne recently talked to this programme about that issue. That programme is called ‘Associative discrimination case spurs review of return to work policies’ and is available for viewing now from the Outlaw website.