A business owner emailed in the following HR query:
“One of my employees is refusing to return to the office and wants to work from home full time. What are my rights as an employer?”
Below, we discuss employers’ and employers’ rights and how to deal with this particular situation.
Can an employer force an employee to come back to work?
In theory, yes. Failure to follow a reasonable management instruction is a disciplinary matter and an employer could seek to discipline such an employee. However, until you know the circumstances behind the request, a lighter-touch approach would be advised. If an employee won’t return to the office simply because they don’t want to return, then it is unreasonable on the employee’s part and it would be unreasonable grounds for refusal, and the employer needs to understand the reasons before committing to any action.
What is the reason for the refusal to return to the office?
Employers are going to have to understand an employee’s circumstances and understand exactly why and what the reasons are so they can work around it. A one-size-fits-all approach when dealing with employees reluctant or refusing to return to work could be misplaced because it’s not easy for some people to return to work. They may have valid reasons for not returning to the workplace such as living with someone who is immune-compromised or a single parent who cannot secure childcare. Employers must factor in various considerations before making a decision. In addition, an employee cannot be at a detriment for refusing to return to the workplace where they have serious health and safety concerns.
Health and Safety Concerns
Employers must take reasonable steps to provide a safe place of work for their staff. If an employer refuses to meet their obligations, employees can make a complaint to the Health and Safety Authority. If an employer dismisses an employee because they refused to return to work because of safety concerns, and an employee can prove that the workplace was unsafe, they could make a claim for unfair dismissal.
An employee may face disciplinary action if they do not want to return to work (in situations where they cannot work from home) if your employer has work available and has taken reasonable steps to ensure that your workplace is safe. It could end in disciplinary action for unreasonable refusal or failure to follow a reasonable management instruction if an employee refuses point blank to return to the workplace. An employee should discuss the concerns they have about returning to work with their employer to resolve the issues informally.
This is a complex area and there is no simple answer regarding employers’ rights where an employee refuses to return to the workplace. Each employee’s circumstances are different, and it can be difficult to determine what’s reasonable for either the employer or employee until you understand the specific nuances of their situation.