15 May 2020
In recent days, there has been significant confusion surrounding what we are and are not allowed to do, particularly since the Welsh Government’s advice has been different from that issued by the UK Government.
However, from a business perspective, the advice so far has been more clear. Many businesses were required to shut – in particular, hospitality and non-essential shops – and while non-essential work has never been ordered to stop either in England or Wales, many businesses have closed, either due to concerns about the pandemic or a total collapse in demand.
In recent days we have seen signs that the UK Government is trying to re-activate the economy and encourage employees to return to work. While those who are able to work from home are still being told to do so, it does appear that the Government’s guidance has resulted in more employees returning to the workplace.
All employers have a continuing obligation to take all practicable steps to ensure a safe place of work.
In England, the Government has produced a series of 8 Covidsecure documents for specific industry sectors containing guidance on minimising the risk of the transmission of Covid19 in the workplace. The content is very similar across the 8 documents but there are 5 key principles:
When preparing for a return to work at their individual business, reading these documents really is the best starting point for employers. They will need to undertake a full risk assessment and then put place all appropriate safety measures to mitigate so far as practicable the risk of Covid19 transmission. The new rules will then need to be published to employees and communicated clearly before any employees can return to the workplace.
It should be noted that employees who refuse to comply with the new rules may potentially be exposing themselves to the risk of disciplinary action.
As well as the practical aspects of returning to the workplace, however, employers should also be prepared for the psychological effects of their employees having had to stay at home for the last two months. While we have all been living through the same global crisis, each of our situations are different and therefore we can expect to see a wide range of responses and anxieties from employees as the lockdown restrictions start to ease. While many staff will be keen to return to come sort of normality, there is also likely to be significant resistance from others to returning to work and concerns raised about health and safety and risk of infection, either in the work place or on public transport.
If safety measures have not been put in place, it will be reasonable for an employee to decline to return to the workplace, but assuming appropriate measures have put in place, what happens if employees still don’t want to return to work?
This question needs to be considered in light of the specific health and safety rights protecting employees who decline to undertake certain activities under the Employment Rights Act 1996 and general provisions relating to the fairness of dismissals. Regardless of length of service, employees have the right not to suffer detriment dismissal for raising concerns relating to health and safety, which includes the right to absent themselves from the workplace until the concerns are addressed.
According to the law, there must be actual danger and the seriousness and imminence of the danger is a matter for employee’s reasonable belief. The law does not easily deal with risk of infection from other employees or from the need to use public transport to get to work as it is geared towards unsafe workplaces. An employee simply concerned about the general risk of Covid19 may not be protected, but one can imagine that lots of individuals, trade unions and solicitors will be willing to argue the point. The critical point for employers is to ensure that they have followed all Government guidance.
Legally, an employee not willing to attend work – except in instances where an employer has not complied with its health and safety obligations – will not be entitled to be paid, but should employers take the ultimate sanction of dismissal? Given the unprecedented circumstances, our view is that employers should adopt take a sympathetic approach, at least initially, and allow employees who are anxious about attending work and travelling to work to take unpaid leave or to take holiday rather than considering disciplinary action.
Similarly, if employees cannot attend work due to childcare problems because schools are still closed, in our view, a sympathetic approach should again be adopted. While there is no absolute right to take time off, female employees may have a potential indirect sex discrimination claim as they are more likely to have childcare responsibilities. Trying to argue that dismissing an employee who could not attend work due to disruption to normal childcare due to Covid19 might be a very difficult case to progress in a tribunal.
Employers will also need to consider carefully the position of pregnant employees and the extent to which they can work safely. Individual risk assessments will need to be conducted for all employees who are more vulnerable due to underlying health issues, and even if the employee does not formally have to shield, employers should be prepared to make reasonable adjustments and address the individual concerns and circumstances of each person. Much will depend on whether someone is fit to work, or whether they are being advised to shield. Furloughing still remains a potential option but individual discussions will need to take place about the employee’s concerns and whether these can be addressed. Employers should think very carefully before taking action against employees for not attending work.
Of course, some employees may want to return to the workplace after feeling trapped at home for so long, but for those businesses where the work can be completed from home, the employer may prefer that to continue longer term, which could cause issues for the employees who are keen to return to the office. Certainly, the current Government guidance is that employees who can work from home, should do so. These are not normal times and again, in our view, employers should be able to require employees to work from home but should engage with those employees about why they want to work in the office and see if anything can be done to assist.
The important message is that a one-size-fits-all approach will not work in these highly unusual times so in order to ride the storm as effectively as possible, employers should be prepared to take time to address individual concerns and deal with each case as sympathetically as possible.”
Daniel Wilde is Head of Employment Law at Harding Evans. If you have any concerns about managing employment issues as we start to emerge from the lockdown, please contact firstname.lastname@example.org or call 01633 760662.