An employee refuses to attend work due to fears about COVID-19,  so what can the employer do and what should the employee be paid?

An employee refuses to attend work due to fears about COVID-19,  so what can the employer do and what should the employee be paid?

As domestic staff cannot work from home, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.

If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable instruction, and their unauthorised absence. If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

However, the context of the refusal to attend work would need to be closely considered before disciplinary action were taken. Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals which do not require qualifying service and action short of dismissal on these grounds could amount to a detriment which is unlawful under section 44 of the ERA 1996.

How should an employer deal with an employee who has severe anxiety and is afraid to attend work?

An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. The ACAS guidance suggests that an employer could offer extra car parking where possible so that the employee can avoid using public transport, keep the employee on furlough if they are temporarily unable to work, or arrange for them to temporarily work different hours to avoid peak time travel.

If the employee’s anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.

Where an employee suffers from severe anxiety, this could amount to a disability under the EqA 2010. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.

Each situation is different and it is recommended that employers takes advice at the appropriate time.

This advice has been provided by Constantine Law. See details below for contact.

Nick Hine

Constantine Law

The Clubhouse,

8 St. James’s Square,

London SW1Y 4JU

07931360372

[email protected]