Lately, we have been delving into some of the employment-related issues that have arisen out of COVID-19.
Today, we are looking at what you might wish to do if an employee is refusing to follow the guidance on coronavirus.
Initially, you need to look quite carefully at what you have done as an employer beforehand, which might seem like an unusual answer. However, there is method to this approach.
Firstly, you must ensure that you have the necessary health and safety advice in place to ensure that you have the scientific evidence for why this is necessary. In the current context, it might seem obvious why you are asking employees to abide by guidance on COVID-19, but having a specific assessment and advice from your health and safety adviser on how to manage that in the workplace will be essential evidence moving forward.
Alongside this, you must delve into the instructions that you have given to your employees (preferably in writing or documented in some way) requiring them to follow the guidance. Don't simply rely on the government guidance being obvious, as your employees will expect you to have laid out how the guidance applies in the workplace.
To give an example of this, let’s assume that you run a business that makes regular deliveries to a hospital. Some of your delivery drivers are refusing to wear face masks when making those deliveries. You have received complaints from the hospital and from other members of staff expressing their concern over the risk posed by this and you need to know whether you can compel your drivers to wear face masks. Your health and safety adviser has notified you that, both in the workplace and in the course of making deliveries, your employees must follow the guidance, including wearing face masks. There may be no rule in your staff policies that is specific enough to cover this requirement and your contracts of employment may not cover it either.
If you haven’t issued a management instruction setting out your expectations and linking this to the most relevant policy (or policies) available to you (such as your health and safety policy), then you should consider doing this as soon as possible. Importantly, at this early stage, it would be best not to focus on "calling out" individual employees, even if you believe that they are the only ones who are not following the guidance. Most employers prefer to request assistance in drafting such management instructions as they are often complex.
If employees then continue to ignore the requirements that you have set for the workplace, that would be the time to consider a more direct approach, which might include following your disciplinary procedure.
As you can see, the key here is to ensure that you have done all that is appropriate and necessary to create a reasonable expectation through the use of clear instructions in the workplace rather than jumping directly into following your disciplinary procedure.
This article is intended for information purposes only and not as a substitute for legal advice. TP Legal does not accept any responsibility for any decisions that you may make as a result of reading this article. If you require employment law advice, please do not hesitate to contact us on 01483 751878 or at firstname.lastname@example.org.
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