“Do I have the right to refuse a back to work interview?” Scorpion Legal Protection answers this question from a follower on the Scorpion Facebook page as well as additional questions like ‘what is a back to work interview?’, and ‘what are the consequences of refusing it?’
First, it’s important to know that a ‘back to work’ interview is not a disciplinary hearing, it’s also not a chance for the employer to yell at you or take action against you. It’s a short, informal meeting between you and your employer – ideally, the person you report to directly, like your line manager.
What kind of questions can you expect?
The point of a back to work interview is:
a) To reduce the level of absence in the organisation.
b) To ensure the individual employee is fit to return to work.
c) To pick up on any concerns or underlying health conditions, enabling them to be addressed.
Your employer may want to make sure you’re well enough to be back at work if you’ve been off sick – if you contracted Covid-19 they may not want you to return to work until they are sure you can no longer pass on the virus. Your employer may also bring up if they have noticed you have a pattern of being absent, for example, some employees who call in sick regularly on Fridays or Mondays may be viewed suspiciously. This is not a formal warning, but they are letting you know that they have noticed.
The employer may want to update you on any company changes that happened while you were away. Some employers use this as an opportunity to identify possible changes that they could introduce to accommodate you or avoid potential accidents, for example if you’ve gone in for knee surgery and used to work on the first floor, they could move you to the ground floor to avoid you having to walk up the stairs. In terms of the Occupational Health and Safety Act, the employer is under an obligation to provide and maintain a workplace that is safe and without risk to the health of their employees, which includes putting measures in place to avoid any hazards within the workplace.
Is a back to work interview legal?
In South Africa, nothing prohibits the use of back to work interviews, as long as they are practiced in a manner that does not violate the rights and interests of employees without reasonable justification.
However, it’s important that these back to work interviews are being conducted fairly and equally so as not to discriminate against employees. This means all employees must be asked the same set of questions and all employees must be subjected to a back to work interview, not only some.
Can I refuse to do a back to work interview?
Yes and no. This may depend on what you agreed to in your employment contract, because when you sign your employment contract you agree to the company’s policies and procedures. You can refuse to do the back to work interview, but doing so may put you in breach of your employment contract, which could justify the employer in taking disciplinary action against you.
The employer may be seen as reasonable in asking for back to work interviews where, for example, Covid-19 cases are concerned and they are responsible for ensuring the health and safety of employees within the workplace. If you have contracted Covid and refuse to tell the employer, you can be dismissed for disregarding the health and safety of your colleagues and customers. The Labour Court in Eskort Limited v. Stuurman Mogotsi regarded this conduct as extremely irresponsible behaviour and ruled that a dismissal is justifiable.
However, this does not mean you have to answer all their questions either. For example, if you go in for an operation, the employer is not allowed to insist that you tell them what you went in for. Refusal to answer will have to be judged by taking into account the surrounding circumstances of each and every case. Rationality and reasonableness are important principles to consider in this regard.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.