It boils down to employees' reasons and the employment arrangements
Even with a backdrop of a pandemic-hit world, offices across the world are starting to reopen again as more people are vaccinated and less contract COVID-19.
With this, employers are inviting their teams back to their physical workplaces, luring them with free meals and more perks to make offices a better option than workspaces at home. However, even with such offers in place, resistance on return-to-work schemes among staff occur due to varying reasons. And, in response, some employers have begun imposing sanctions, including termination, on those who refuse an office comeback.
The question now is: can employees really be fired if they refuse to return to the workplace? HRD caught up with Dawn Tan, managing director at Ashurst ADTLAW, as well as Karen Mitra, counsel, Ashurst, to answer this pressing dilemma among HR professionals.
"In theory, yes, but that would depend on the contractual arrangements," Tan told HRD. "Specifically, the contract of employment and whether in doing so the employer has followed the contractual processes on termination."
According to Tan, HR professionals should probe deeper on why employees are refusing to come back before terminations.
"Steps should be taken to understand why it is the person does not want to come back to the office and if there are certain concerns at play," she said.
Mitra pointed out that some employees might have legitimate concerns associated with COVID-19 because of their personal circumstances, while others just prefer to stay at home.
"Obviously, you might need to take a different approach with respect to those two groups if you really do need people to work from the office," Mitra said.
However, they suggested using termination as a last resort when dealing with resisting staff.
"Before termination, the first step that HR would take is investigating the employees' concerns, such as why don't they want to come back to the workplace. What is the problem at hand? Is it related to COVID-19? Is it related to bullying?" said Mitra. "What actually is the concern and how can we address that before getting to that point where we need to apply some sanction or look at terminating employment. Termination is always the last resort and it's not something that should be done lightly.”
Mitra said that if employers have a contractual right to require employees to be in the workplace, "a direction for them to return is likely to be lawful and reasonable" depending on prevailing COVID-19 rules. And Tan added that these employment arrangements, as well as employees' reasons, would be the basis for accommodating resisting staff.
"This would depend on the reason and whether or not the employee has a legitimate reason or reasons not to return – or whether they just don't want to come back because they would rather stay at home," Tan explained. "Again, this would depend on the contractual arrangement in place - specifically whether or not pursuant to those arrangements the employer has the discretion not to award a bonus to the person when that person does not want to return for no good reason and the performance has been affected as a result."
However, if employees do have legitimate reasons, Mitra said it’s important that they are explored - with Tan adding that it might just be right to extend remote work arrangements for them or implement alternative working schedules that would fit their demands.
"It's very important for those people who do have legitimate basis that those reasons for resistance are carefully explored," said Mitra.
"From a practical perspective, if there are legitimate concerns regarding the person's health - then that might justify an extension of remote working arrangements," added Tan. "Alternatively, enhanced safety measures at the workplace, which I understand many workplaces still have in place, might be appropriate. Or it could be that an alternate work schedule might resolve the concerns."
For HR professionals, encouraging employees back to physical offices is challenging. So how exactly can they successfully implement this without causing tension in the organisation and losing talent?
"The simplest answer lies in a good employee/employer relationship," said Mitra. "Good relations begin and end with engaging your workforce. Understand what the business needs, what employees need, and devise your return-to-work strategy and policies based on that. The employee consultation phase is really, really important when it comes to implementing strategies, particularly given that it's been a difficult two years for everybody."
*ADTLaw LLC and Ashurst LLP form Ashurst ADTLaw in Singapore. Ashurst LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, Ashurst works with ADTLaw. The information provided is not intended to be a comprehensive review of all developments in the relevant area of law and practice referenced, or to cover. Readers should seek legal advice before applying the information to specific issues or transactions.
