My Employee is Refusing to Social Distance at Work – What do I do?

Andrew Willis

Andrew Willis

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10 Sep 2020

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Unfortunately, there are individuals out there who don’t believe in social distancing and mask wearing. This means, even if you’ve set out a perfect plan to make your workplace COVID-secure, it may not matter. The health & safety of your employees is your responsibility, even if they’re the ones putting themselves and others at risk.

So how do you a manage an employee who is failing to follow your guidelines? In this article, we’ll tell you what approach you should take.

COVID-secure workplaces

First (socially distanced) steps 

Before we look at what to do when an employee fails to comply with your measures, we need to review what’s in place.

Prior to everyone returning to work you should’ve conducted a risk assessment. Is that assessment available for employees to view? Are there clear actionable points on the risk assessment? Have you followed up these actions?

After this, take a look at the measures you’ve got in place currently. What steps have you taken to prevent the spread of COVID-19? Have you clearly marked floors to highlight two-metre distances? Have you installed hand sanitising stations?

Finally, have you communicated all the measures to your employees? Are they aware of them?

If your answer to any of these questions is “no”, you should address them before penalising staff.

The employee still refuses to follow our measures… 

If you’re certain that you’ve done everything correctly, then you need to have a conversation with the employee. It’s worth trying to handle the situation informally before proceeding to a disciplinary.

Inform the employee that failure to comply with the measures you’ve set out may be an act of gross misconduct. Ultimately, their behaviour could lead to a dismissal.

Hopefully, this alone should be enough to persuade them to follow your health & safety guidelines. If it isn’t, then you need to proceed down a more serious disciplinary route.

How to handle a disciplinary…

As with all disciplinaries, you must follow correct procedure. Failure to do so could lead to a claim of unfair dismissal.

Begin with an investigation into the misconduct. It may be necessary to suspend the employee if their presence will interfere with the investigation. Once finished, you should send out a letter to the employee informing them of the allegations and next steps.

Remind them of their right to have someone present at the hearing.

Don’t make any sanctions during the hearing. The purpose of this meeting is to determine if the employee breached your health & safety measures.

Once the meeting is over, you decide whether (based on the evidence) the allegations are true. If yes, you may then decide to dismiss the employee.

Employees have the right to appeal against this decision, and you should remind them of this.

For a full breakdown of the disciplinary process, from start to finish, see our article here.

One of my employees has raised a grievance against a colleague…

The first step when a grievance is raised is to see if you can resolve the issue informally. Do this quickly, as the issue may develop if left for a long period of time.

Hold a meeting with the two parties (make it virtual if social distancing isn’t possible). Keep a written record of the grievance, plus what you discussed in the meeting. If there are any actions or adjustments that you need to make, note these down too.

If you’re unable to resolve the issue informally, you can then begin a formal grievance.

In cases where an employee is harassing a colleague, or being violent, you can skip the informal route.

For full details on how to conduct a formal grievance process, see our article here.

Address disciplinaries and grievances quickly

Health & safety is vitally important during coronavirus. Failure to act when an employee breaches your COVID-secure measures sets a precedent for others to follow suit and demonstrates failure to comply with your duty of care towards both employees and non-employees. Treat each case with the severity it deserves and hopefully you won’t see a repeat offence.

Remember, failure to protect your employees is on you and you can be vicariously liable by your employees actions or failures. This can result in significant fines from the HSE or worse—an outbreak among your staff.

If you’re uncertain about any of the issues raised in this article, please give Croner a call. Our team of HR and health & safety experts are available 24/7, you can reach them today on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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