Common questions answered by our Senior Employment Law Solicitor - Julie Barry of Inspired HR.
As lockdown continues to ease, many employers are reviewing how their staff can safely return to work. Understandably, many questions and concerns will arise for both employers and employees on this matter.
The guidelines aim to be a framework to identify risks and take measures to mitigate them. There are five key steps to working safely: Carry out a COVID-19 risk assessment. Develop cleaning, handwashing, and hygiene procedures. Help staff to work from home. Maintain 2m social distancing wherever possible e.g., by stopping hot desking. If you cannot keep people 2m apart, then manage transmission risk e.g., by putting screens in place, or staggering working times. Things will be amended over time, and it is important to bear in mind that restrictions may be put back in place if there is a spike in infections.
The only way I can get to work is on public transport. Can my employer require me to come in? The government’s advice is that everyone who can work from home should continue to do so. This then should be an employer’s primary aim and they should take reasonable steps to enable it (thinking creatively about whether the job can in fact be done at home, ensuring the right equipment and support is made available or whether the employee be redeployed to a role that can be done from home). If homeworking really is not possible, we suggest: Each case should be looked at individually and discussed with the employee. There is not a ‘one size fits all’ solution. It will depend on the risk faced by that individual.
Be flexible in travel times (avoiding peak hours) and hours worked. See if steps can be taken, such as providing extra parking or consider whether the employer could help the employee to purchase a bicycle, to enable them to cycle to work. Employers should bear in mind that if employees feel they are in “serious and imminent danger” by being forced to come to work, they could bring claims for breach of the employer’s health and safety obligation. Alternatively, they could proceed with a whistleblowing claim, which would enable them to seek a compensation payment. I have young children at home.
Can my employer insist I come into work? Some age groups are returning to school. What we suggest is: Employers should look at each case individually and have clear discussions with the employee concerned. Think again about support that could be offered to enable working from home. It needs a different mindset, to leave behind old ways of working and think of new ones. Suggest other options if the employee cannot work from home, such as taking holiday, reduced hours, parental leave, time off for dependants, extending furlough or unpaid leave. Reasonableness on the part of the employer should be key here and if all these options are refused, it may be a breach of the implied term of trust and confidence. This may be something an employee suggests as a bargaining tool. As an employer, be aware that unreasonable refusal may entitle an employee, with two years’ service or more, to resign and claim unfair constructive dismissal claim. As the bulk of childcare still falls to women, employers may find that if they insist upon a return to work, employees may claim that is discriminatory, if women are disproportionally and disadvantageously affected. Can my employer sack me if I refuse to return to work? The usual answer would be that this would be a fair dismissal, providing proper procedures were used, as the requirement to work is a key aspect of the employment relationship. But these are not usual times, and the reason is likely to be that the employee feels unsafe returning to work. Employers have a duty to protect the health and safety of their employees, more so with Covid-19 and the guidance provided. Employees can refuse to work if it is deemed to be unsafe in the workplace and are protected from being dismissed or suffering a detriment because of their refusal.
There is no clear answer, but we suggest employers should: Ensure you have carried out a full risk assessment and implemented the results of the assessment, taken reasonable steps to comply with upto-date government guidance, consulted and discussed with staff (and any union) beforehand and sought agreement on safe measures before encouraging a return to work. Explore fully with the employees concerned their reasons for not wanting to return to work and test the validity of their concerns. Be open to the possibility they may be suffering from a longterm health problem, physical or mental, which means they are disabled. Generally, encourage staff to raise concerns about health and safety and take steps to deal with legitimate concerns. Also look at ways of encouraging those who want to return to the office, this can lead to all employees wanting to be together. It is likely that we will be living with the virus for some time to come, so risk assessments and measures need to be updated as necessary to give staff confidence in coming in to work. I need to make some redundancies. Can I just choose those who have been furloughed? The short answer is no, not fairly. If redundancies are necessary, it may be tempting to think you have done without those on furlough for many weeks and you can therefore make them redundant. But remember you need to use fair selection criteria, a fair procedure and consult. If more than 20 people are at risk, you need to collectively consult. Just using furlough as a basis for selection is unlikely to be fair.
