What to do if an employee refuses to return to the workplace

In late January 2022, the government revealed the Transitional Protocol. This new guidance set out how best to safely bring staff back to the workplace. Since then, employees have begun to return to the office on a phased and staggered basis. And yet, many employers are dealing with a whole new issue: employees refusing to return to the workplace.

Before beginning any disciplinary procedures, ask yourself these important questions: What rights do you have if an employee refuses to return to work? Can employees be disciplined for staying at home? How can they be encouraged to return to the workplace?

Let’s find out…

What can you do if an employee refuses to return to the workplace?

If an employee refuses to return to work without reason, it could be deemed an unauthorised absence. However, factoring in reasons for not wanting to return to the workplace, unauthorised absence becomes a little trickier to manage.

Still, when dealing with an unauthorised absence, it’s best to inform the employee that they’re required to return to work. Notify them that if they fail to attend work, it may lead to formal disciplinary action. If the employee continues to refuse to return or fails to engage, it may lead to dismissal with notice. Here, however, you must remember that any employee with at least 12 months’ service prior to being dismissed will have the option of bringing an unfair dismissal claim before the Workplace Relations Commission (WRC).

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If the employee in question is able to carry out their work from home, you might consider making the arrangement permanent. Flexible working arrangements in Ireland are, after all, becoming increasingly popular and are now even being used to attract and retain staff. Doing so is a safer bet, especially if the employee has remained productive while working remotely.

You can also turn to your employee’s employment contract in this situation. Employees have a duty to perform their job, and there could be implied terms (unwritten) that you can fall back on.

Aside from contracts and duties, you can try to encourage your absent employee to return to work…

Encouraging staff to return to work

One effective way to encourage an employee to return to the workplace is to assure them that you’ve taken all safety precautions.

The guidance set out in the Transitional Protocol, along with a risk assessment, will help you establish processes for identifying and eliminating risks in the workplace. When undertaking your risk assessment, get your staff involved. Ask them if there are any specific safety steps they’d like you to take. For example, staff might feel safer with staggered shifts as it would help them avoid public transport at rush hour. Staggered breaks would also free up communal spaces.

Involving employees in your risk assessments helps show them that you’re taking their concerns seriously. Not only that, it gives them more control over where they work.

You should then share a copy of the risk assessment with all staff – remote workers included. Doing so reassures everyone that the workplace is safe, and your reluctant employees will be more likely to return.

Employee mental wellbeing support

It’s understandable that some employees will have reservations about returning to the workplace. To help staff feel better about the return, consider offering an Employee Assistance Programme (EAP).

An EAP gives your employees access to 24/7 confidential helpline, face-to-face counselling, and Cognitive Behavioural Therapy (CBT) sessions to help them stay happy and healthy.

Our HR consultants can help

For expert advice on handling employees who refuse to return to work, speak to one of our HR consultants today on 01 886 0350.

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Nora Cashe

Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

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Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

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David Begg

Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.