Taking Disciplinary Action Against An Employee Who Refuses to Attend Work On Public Transport

Posted in : Seamus Says - Employment Law Discussion on 6 November 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus/COVID-19; Disciplinary action

Q: Would it be reasonable to discipline an employee who's refusing to attend her usual place of work to undertake her cleaning role as she is refusing to use public transport due to COVID risks? The employee did previously shield, but she also took annual leave last month to visit Turkey, which was done via airplane and very much a form of public transport.

Seamus: Okay. Well, the concern obviously would be that the employee is just trying to avoid attending work. And you would have a suspicion certainly that the refusal to use public transport to come to work, to say that they can't attend work. And that's a problem for the employee if they have taken other steps, such as going on holiday to Turkey and things like that. Certainly, if you were risk assessing, you would say that that was a problem.

I mean, I think fundamentally for me, it comes back to the point of, I know that we are in exceptional circumstances, but a contract of employment does not provide for how an employee will get to work or how they will travel to work. It may in certain circumstances where there's travel involved, or even if it's consideration if there has been TUPE transfer, if there's a change in the place of work. But, you know, in normal circumstances you take a job on, you're alive to the fact of where your place of work is and the employer doesn't build in costs in respect to travel or anything like that for it ordinarily for such a role. So you know, there are other options in relation to public transport for people to get to work. And I can recall a number of months back we talked about but the other options were in respect of, you know, possibly the employer looking to facilitate car parking and the sort of e-bikes that are about. But realistically, you know, is the employee really going to spend lots of money to get to work?

Ideally, I mean, you would want to work with the employee, I believe. Did you say that the employee was a cleaner? And so, I mean, it would be somebody that would have to attend work. It wouldn't be an option from working from home there, and ideally you'd want to . . . the employer would want to work with the employee and communicate with them in relation to what are the alternatives if they don't want to use public transport or have a discussion with them as to what exactly is the reason for not wanting to use public transport. And I would assume if it had been previously shielding that might be the issue. But it's looking about what other alternatives are.

Ultimately, if the employee isn't able to attend work and if it's felt that the employee has been unreasonable in their approach, you may look at two situations, either one of the employee simply doesn't get paid because they're not upholding their contractual obligations and attending for work. And I think that if you were going to take that view, you will absolutely need to exhaust all of those other options in respect of communication, and then other attempts to get people to work. Or alternatively, you may say that the employee is, you know, frustrating their contract and you might consider looking at disciplinary action. 

Scott: Yeah, I mean the one of the, I suppose, the problems there is that you can't put them on furlough because you require them. As one of our listeners has just pointed out flying is not public transport, but it's certainly transport where lots of public get on it, I suppose, is the argument. But maybe what comes through from the question to me anyway, is that the employer is suspicious, and therefore they will go around looking for confirmation bias to confirm that this person is at it. You know they just want to be furloughed because they get 80% for not going to work as opposed to 100% of their wage for going in. So there's, you know, they're only getting 20% of presumably if they're a cleaner not a very high wage, and they're going to not . . . that'll be not by the public transport cost they're getting to work is the issue. But if the employer suspicious and that's the attitude, they'll go and they are trying to prove it and of course when it comes to tribunal, that can all be unfurled. That's one of the difficulties there.

So your point that you're making that you've got to explore all the other options before you take any kind of action, even if it's . . . If you can't get in, you can't get paid. Because that person shielding and the impact there, albeit the employer isn't responsible for how you get to work. That person could well be disabled or has had COVID and have got long COVID, probably don't know yet, but that could well be something that meets the definition of a disability, and then you've got an issue there. So it's a wee bit more complex, I suppose. But I think your point that you've got to really explore all the issues and go in there with an open mind.

Seamus: Absolutely, yeah.

Scott: Would be one of the things that would strike me about this even if you believe the person at it, you've got to keep an open mind with these things.

Seamus: Yeah, I mean, you know, to be fair, and to get a fair opportunity, it needs to be explored or investigated with the employee, and you know, before you arrive at any decision that the employee is at it and that there's proper consideration given and discussion with the employee, but you wouldn't rush into making a decision that deserves the investigation process.

Scott: Yeah, I think we're all a little bit fried at the minute whether, you know, if you're working and you're in HR that, you know, you're being pulled between pillar and post. We have another question, the next question I'm going to raise is about that. But just before we go on, I mentioned tribunals, and you were chatting before we came on. We were going through those questions, doing a little bit of prep, believe it or not, folks. And you were saying, Seamus, that you've been given a date for a tribunal, which is in November 2021 is the earliest you're going to get tribunal.

Seamus: Yeah. And so, I mean, it's just a point to make everyone aware of that, you know, the tribunals are doing their very best in relation to dealing with the administration of their role and their duties. But there's no doubt that COVID has had a serious impact upon, you know, courts and tribunals' ability to deal with cases and there's a reduces capacity because of the safety requirements. And yeah, I mean, the earliest date that we can find for a case was just this week was November 2022, sorry, November 2021. I'm a year ahead of myself.

I've done a couple of cases at the tribunal over the past number of weeks and I can understand that the tribunal are under pressure and they're doing the very best to work with the resources and the abilities that they have with the restrictions in mind. And it would just be that if somebody was considering a claim or were considering what the options were of the claim. And you know, you're not looking at a quick turnaround and you're looking at probably I would have thought, if you are bringing a claim, you're looking at least 18 months up to 2 years or more for a case to be listed.

And as an employer, that period of time, there are costs going to be involved and its just to bring that to everyone's attention.

Scott: One of the points you make regularly on this series of webinars is to keep records. You imagine trying to remember, if you go to this situation with the cleaner, trying to remember what actually happened two years before or a year before and keeping in mind that this person may be dismissed, and won't have a job, and is going to have to wait possibly a year and a half or longer before the case is heard. These decisions are having a big impact on everybody, you know, employers and employees. It's a very difficult time for people.


This article is correct at 06/11/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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