Can I fire an employee who refuses to return to the office?

While there’s little chance of going back to the pre-pandemic way of working, employers are able to direct their people to return to the office. So what happens if an employee refuses?

When COVID-19 first ushered employees out of their workplaces and into remote work, many employers worried about how they’d cope. Would employees be able to get work done effectively while being physically separated from their colleagues? And could employees be trusted to work effectively from home?

Many people were pleasantly surprised to find working from home offered myriad benefits – they could often maintain a better work-life balance and concentrate more easily without the distractions of a busy office. So in a strange turn of events, now that most offices have reopened, some employees are digging their heels in and refusing to return to the workplace.

Annamarie Rooding, Director and Principal of Principled Workplace Consulting, says the topic remains a “really heated issue” for lawyers and HR professionals.

“I can certainly see the attraction of working from home, but I can also understand why employers see value in returning to the office, ” she says. 

“There is intrinsic value to having people in the workplace and connecting with each other on a different level than what is possible over a screen. For that reason, I think it’s reasonable for employers to say, ‘It’s time to come back to work.’”

So does this mean if an employee refuses, can you show them to the door?

“The answer is yes. There is no doubt about it,” says Robin Young, Partner at Holman Webb Lawyers – although he caveats this by noting that it does depend on a number of factors, which we will go into more detail in a moment.

Young first advises drawing your attention to the employment contract itself.

“In most cases there will be an express term, or potentially an implied term, that the employer can rely on to compel the employee to comply with the contractual obligation to work in the workplace. You can’t force a person to do something that is not safe, but if you can do it safely, then you can enforce a return to the workplace.”

“If there is a contractual right, then the employer can confidently say: ‘We require you to come back to work’, but it’s important to not use it as a sledgehammer,” says Young. “While you need to consider the needs of the business, you also need to consider the needs and preferences of the employee.”

Employee refuses to return to work

It’s important not to jump the gun and assume an employee is refusing to return to the office simply because they have a personal preference for remote work.

A pre-existing medical issue or social anxiety about returning to the office might be keeping them from the physical workplace, or they might feel concerned about the risk of COVID-19 posed from being in the office.

Once these issues have been openly discussed, try and find a way forward. This might include engaging an EAP to learn techniques that can help an employee ease their anxiety about returning to work. Or the onus might be on the employer to improve work, health and safety measures in the office by mandating vaccinations, making hand sanitiser readily available, ensuring the workplace is well-ventilated, or creating more space between employees’ workspaces.

“A lot of people are worried because they’re not sure that they’re safe,” says Young. “I’ve seen a lot of employers dealing with people who are reluctant to come back because they don’t know if the workplace is safe.”

If, however, it becomes clear that the employee simply has a preference for remote work, it may be necessary for the employer to take a more direct approach.

“They can say that they require people to be in the office for certain reasons. It’s all about winning hearts and minds by explaining the reasons for your position, and not just doing it for the sake of being prescriptive,” says Rooding.

“Ground your decision in something more substantial, and even if they don’t agree with it entirely, it’ll help them understand where you are coming from. Then you’ll also be in a much better position to avoid a legal claim if it ends up leading to dismissal.”

“It’s all about winning hearts and minds by explaining the reasons for your position, and not just doing it for the sake of being prescriptive.” – Annamarie Rooding

Reasons for requiring a return to the office could include that being present in the office for some or all of the work week can help to maintain team morale and build a strong workplace culture, she adds.

“There’s value in the social connections and learning by osmosis as well.

“On-the-job experiences are critical to development. There’s a point at which employers and employees are both sacrificing a lot by having people continue to work remotely all the time. Inform an employee of what they’re missing out on. They might not realise it at the time, but it could hamper their career progression.”

Read HRM’s article on proximity bias to find out more.

Demanding a return to work merely because you want to keep an eye on employees isn’t likely to go down well, she says.

If an employee is still reluctant to return to the office, and you’ve explained in detail your reasons for recalling them to the office, the situation might call for more disciplinary action. So how long should you give them to return before you take further action?

“You probably can’t put a hard line on it, but I’d advise leaving enough time to ensure that you can adequately explore any objections,” says Rooding.

“You would also need to provide the employee with an understanding of what will happen if they can’t reach an agreement – does it mean they can lose their job? They need to understand what’s at stake.”

Coming to a middle ground

It’s reasonable for employers to ask employees to return to work in some capacity, but, in most situations, making this a full-time requirement could work against an employer, says Rooding.

“Employers who are very hard-lined on this and want everyone back in the office five days a week are taking a really big risk from a recruitment point of view… The world of work has changed and peoples’ expectations have changed. It’s okay to have your reasons, but if you’re not prepared to be flexible, you’ll have to accept that you’re probably going to lose out in the market.”

Instead of enforcing a requirement to be present in the office full-time, consider a half-way compromise or a phased return to the workplace.

“You could start by asking them to come back three days a week, see how that goes and then revisiting the arrangement two months done the track,” says Rooding.

“If there is a contractual right, then the employer can confidently say: ‘We require you to come back to work’, but it’s important to not use it as a sledgehammer.” – Robin Young

Employers need to ensure they follow a fair process, so that if the situation ends up escalating, a dismissal won’t be deemed harsh, adds Young.

“I think saying to an employee that they can gradually come back, so they start off returning just one day a week, and then increase bit by bit, might help them to feel more comfortable over time. That’ll probably be considered a reasonable step to take. It will be bruising for an employer to say if they don’t return immediately, their employment will end. That’s always going to be harsh. Apart from having a valid reason, you have to have a fair process.”

It’s also important to conduct a fair process for the benefit of your whole company.

“Consulting your people enables you to build trust, confidence and strong relationships and that’s great for culture – not just for the person in question, but for the rest of the workforce that is seeing this happen,” says Young.

“If they see people let go, then everyone gets nervous, whereas if they see the business talking to the employee in a meaningful way, then everyone feels more secure and comfortable. That’s the kind of culture you’re trying to build in a workplace.”

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