What happens when we return to work?

Many employers are now seeing how staff can return to work. There are understandably many questions and worries. The government has given practical guidelines for eight workplace settings that are allowed to open. This aims to be a framework to identify risks and take measures to mitigate them.

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 can’t keep people 2m apart, then manage transmission risk e.g. by putting screens in place, or staggering working times.

Suggested ways of complying with these five steps are given in the guidance, as well as detailed advice for different sectors. It’s likely to be developed and amended over time, and important to bear in mind that restrictions may be put back in place if there is a spike in infections.

ACAS advises that employers, employees and workers should discuss as early as possible any plans to return to work – including timings, travel, health and safety and changes to the workplace, if there is to be a phased return, and working from home arrangements.

Q. 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). In London, it’s almost impossible to get to work without using public transport and, despite safety measures being introduced, many don’t feel safe or comfortable using it.  If homeworking really isn’t possible, we suggest:

• Each case should be looked at individually and discussed with the employee. There isn’t a one size fits all solution. It will depend on the risk faced by that individual: health issues for them or their family, and length and nature of journey.
• 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 called interim relief at an early stage.

Q. I have young children at home. Can my employer require me to come in to work?

There is the possibility of some age groups returning to school from 1 June and secondary schools in September but even that isn’t certain. How will parents with childcare responsibilities cope if their employer requires them to return to work? We suggest:

• 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 can’t 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 the cornerstone here and if all these options are refused, it may be breach of the implied duty of trust and confidence. This may be something as an employee you may suggest as a bargaining tool. As an employer, be aware that ultimately this may lead to resignation and a constructive dismissal claim for those with two years’ service.
• 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 affected.

Q. I have medical issues and am in a high-risk group. Do I have to return to work?

‘Extremely Vulnerable’ people have received a letter advising them that as high-risk, they should not leave their homes for 12 weeks. ACAS has advised that such shielded employees don’t have to return to work.  The government has confirmed that employers have a positive obligation to make every effort to ensure they can work from home. We therefore think the answer here is a clear no.

Steps employers can take instead include:

• Extend furlough
• If applicable, pay statutory sick pay
• Medical leave might also be appropriate

Extremely vulnerable people are likely to be disabled under the Equality Act, so are likely to have additional protections from discrimination because of their condition or from a reason arising from their condition.

What if you live with a clinically extremely vulnerable individual – can you be required to come back to work?  Here employers are supposed to pay ‘particular attention’ to such an employee’s needs and concerns. This is likely to mean:

• Making every reasonable effort to ensure they can in fact work from home.
• If this isn’t possible, putting clear measures in place at work to ensure protection, such as screens.

What about those who haven’t received a letter but are nevertheless vulnerable because of age, pregnancy or an underlying health condition? Here employers should:

• First see if the job can in fact be done from home.
• If not, look at the safest role for them at work, where social distancing is most effective.
• If there isn’t a safe role, then it’s likely employers can’t insist upon their return.
• Consider offering or remaining on furlough or some other form of leave – advice should be sought on the potential options available and whether the employee should be paid.

As we’ve touched on above, with all these individuals, it’s important to bear in mind:

• Someone with a long-term health problem may be disabled for the purposes of equality legislation. There is therefore a duty to make reasonable adjustments, which is likely to include return to work provisions. Failure to do so may be disability discrimination.
• Special rules apply to pregnant women. If a suitable and safe role can’t be found, then they are entitled to be suspended on full pay.

Q. Can my employer dismiss me if I refuse to return to work?

You may be worried and don’t wish to return to work. If you refuse, can you be dismissed? 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 aren’t usual times and the reason is likely to be that the employee feels unsafe returning to work.  Employers are under 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’s unsafe and are protected from being dismissed or suffering a detriment as a result of their refusal.  But when and how do you decide the workplace is unsafe? And what if the employee has an unfounded or unreasonable fear of returning (and prefers being furloughed, particularly if it’s on full pay)?

There’s no clear answer but we suggest employers should:

• Ensure they have carried out a full risk assessment and implemented the results of the assessment, taken reasonable steps to comply with up to 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 individual employee 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 long-term health problem, physical or mental, which means they are disabled.
• Employers should not rush to disciplinary action and could consider continuing or offering furlough or a period of unpaid leave, or permitting the employee to work from home, in their own or in an alternative temporary role.
• Generally, encourage staff to raise concerns about health and safety and take steps to deal with legitimate concerns.
• It’s likely that we’ll 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.

Q Can my employer require me to return to work with different duties and reduced hours and pay?

Changes to the contract of employment, such as to hours and duties (unless minor) need the employee’s agreement. If more than 20 people are involved in the changes, the employer will need to collectively consult.  In the absence of agreement, a fair procedure must be used to terminate the existing contract and offer a new one. That can be a risky strategy as it involves a dismissal and therefore the risk of an unfair dismissal claim. Some changes, if minor, can be made without consent but employers should be cautious about doing so and agreement is by far the best option.

Q I need to make some redundancies. Can I just choose those who’ve been furloughed?

The short answer is no, not fairly.  If redundancies are necessary, it may be tempting to think you’ve 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.

If you’d like to discuss any of the issues above, please contact Sue Fairbairn on 020 8944 5290 sue.fairbairn@peacock-law.co.uk  or their employment team.

www.peacock-law.co.uk

This article provides general guidance only: expert advice should be sought in relation to particular circumstances.