Coauthored by Catrina Flanagan and Emma O'Connor
As lockdown eases, more employers will be considering how they can safely allow their employees to return to work. Understandably, many employees may be worried about returning which could lead to tension between what the business needs from its employees and what employees’ feel comfortable doing. How do employers manage the “can’t” from the “wont” return? What are the consequences and risks? Emma O’Connor Head of Training and Catrina Flanagan, Solicitor, look at some of the issues for employers.
Some businesses have been encouraged to reopen and ease employees back to work from 13 May 2020 – when, of course, it is safe to do so. However, the government’s advice is still – if you can, you should still work from home.
Whilst this is not “business as usual”, what steps should employers consider?
Risk Assessments and Recovery Planning
So far as reasonably practicable, employers should protect the health and welfare of their employees whilst at work or others affected by their business, such as visitors. Regardless of size or sector, it is the potential risk to your employees, workers and visitors which will be of paramount importance. These risks will be different depending on the business and the circumstances involved.
Prior to re-opening, a Covid-19 risk assessment to identify potential risks must be carried out, be clearly documented and be undertaken in discussion with relevant staff representatives. Once the risk assessment has been undertaken, businesses can start thinking about ways in which they may be able to have people come back to work and overcome any issues raised by the assessment. The government has published eight different guides, focussed on different sectors giving guidance as to specific considerations which may be relevant and has produced a specific Covid-19 risk assessment checklist. Remember that any Covid-19 risk assessments are in addition to other health and safety obligations so do not forget your health and safety.
Recovery planning is crucial. Staff surveys and questionnaires are also a good idea to assess risks such as travel, commuting and transport. This may take time and there are no quick fixes.
Review your health and safety policy; does this need to be amended? Send this round to your staff, reminding them of their obligations to keep themselves and others safe whilst at work – this is a two-way process. Warn of the consequences of failing to follow health and safety rules.
Planning and preparedness as well as clear communication and messaging are key in this situation as well as keeping up to date with government advice.
Staggered or flexible working patterns
Consideration should be given to how any return to work will operate in practice, including considering staggered working hours, rearranging the workplace to allow for social distancing, and whether any PPE may be required for employees. Businesses may also consider asking for employee input in order to ensure that views are taken into consideration when planning for their return.
Communicating with employees
Whether employees are currently designated as furloughed or working from home it will be important to keep them updated as to what plans are being put in place and what is likely to be expected of them in terms of returning to the work place.
Employees may be nervous about returning to work and therefore the more information that can be provided in relation to measures which are being put in place, the better. This will help to reassure returning employees but will also help the business to reduce the risk of employees raising issues with the way in which it is intending to facilitate the return.
Employees who refuse to return – “serious and imminent danger”?
If an employee refuses to return because they feel their work is putting them in serious or imminent danger, the Employment Rights Act 1996 section 44 and section 100 could offer protection.
Many of you may have heard about section 44 or 100 of the Employment Rights Act 1996 in the news or social media and yes, these do give possible rights to employees in this situation. Section 44 provides that an employee has the right not to be subject to detriment where they have a genuine and reasonable belief their health is in serious and imminent danger by being at work or returning to work. If the employee cannot avert the danger, they are entitled to remove themselves from work or refuse to go to work. A detriment here could include disciplinary action, dismissal or a reduction in pay. If an employee does face less favourable treatment for asserting their health and safety rights, they are entitled to bring a tribunal claim. Similarly s100 of the Employment Rights Act 1996 provides that an employee will be considered unfairly dismissed if they are dismissed because they reasonably believe there is serious and imminent risk to their health and they cannot avert that danger. Employees do not need 2 years’ service to bring an unfair dismissal claim.
However, both section 44 and section 100 do not give an absolute right to refuse to go to work simply because they feel unsafe. The crucial question is - is an employee’s belief that they are in imminent danger from catching Covid-19 genuine and reasonable? Cases should be assessed on their own facts as what may be reasonable for one employee may not be so for another employee. This is also why it is important to keep employees fully updated with protective measures which are being taken and listen to concerns. Listen to your employees’ concerns and act where you can. If the employee is aware of measures which the business has taken to minimise any risk to them, a reasonable employee may be less likely to be concerned about dangers they are likely to face.
Employees could also claim that their employer has breached the implied term to protect their health and safety and/or claim constructive unfair dismissal – if they have 2 years’ service. Complaints could also be made to the Health and Safety Executive.
Leaving aside sections 44 and 100, if an employee refuses to attend work, this may become an issue of misconduct which may be dealt with under the employer’s disciplinary policy. This would be on the basis that either the employee is breaching the terms of their contract of employment, or they are failing to comply with a lawful management instruction. In circumstances where disciplinary action is considered, this should be carefully assessed, potentially with the benefit of legal advice, to determine whether this would be appropriate in any given scenario. Without careful handling, this may also give rise to an unfair dismissal claim.
Vulnerable employees, disability discrimination and reasonable adjustments
Some employees may be more vulnerable and therefore the business may have further obligations which apply in relation to having them return to work. Certainly Public Health England rules relating to shielding and self-isolation rules should continue to be followed. Businesses should discuss any particular issues with their employees. This could include, for example, those employees who are pregnant, have underlying health conditions, or are over 70. Some employees with underlying health conditions may also be disabled in accordance with the Equality Act 2020 and therefore, employers need to talk extra care. Some may be shielding because of risks to their families as well.
For those employees who are pregnant, there is already an obligation to carry out a risk assessment in relation to that person and their role. This obligation still applies and it will be important to consider how the coronavirus could impact pregnant employees. The risk assessment should be discussed with the employee and steps to protect health and safety carefully implemented. For those who are pregnant working from home or making adjustments to roles would be applicable. If the employer refuses and pregnant employees feel unsafe going to work, medical suspension on full pay may be another option.
For employees with underlying health conditions, these conditions may amount to a disability under the Equality Act. If this is the case, then the duty to make reasonable adjustments will also apply, which could include home working. This will need to be considered when determining whether it is reasonable to bring that employee back to work, considering the measures you can put in place to protect them.
For some, it may not be possible for them to return so think about whether they qualify under the Coronavirus Job Retention Scheme and could be placed on furlough leave.
With these groups of employees, particular care will need to be taken. As well as the protections under the Employment Rights Act referred to above, there is also a possibility of a claim under the Equality Act. Therefore, the more you are able to plan for the return of employees, and the more communication you have with employees, the less the risk of any potential issues arising.
Unable to return due to childcare?
Whilst schools remain shut many employees may not be able to return to work – or return full time. Be flexible and consider the options. Can this person do some work from home? Can their hours or days be changed or staggered to allow childcare to be shared? As schools and nurseries begin to reopen over the coming months, a sensible and pragmatic approach would be wise whilst remembering risks around discrimination and flexible working.
Of course, employees may make a flexible working request (temporary or permanent) or use unpaid leave or holiday. If employees want they could ask for parental leave or take emergency leave – both of these are unpaid but check your employment policies.
For those who are shielding or who have childcare responsibilities, furlough leave could be an alternative (subject to meeting the Job Retention Scheme conditions).
This situation is evolving at a very fast pace and therefore it is likely that any steps taken in returning employees to work will need to be regularly reviewed and updated to take into account government guidance and best practices. Getting businesses back to being operational will involve logistical, operational, practical changes – and a lot of patience. Talk to your people in your planning, understand their concerns – is it traveling to work or being at work, that is the issue? Risk assessments are great, but do not forget the human side in all this. If any changes are required to the steps which businesses put in place, these should be explained to employees and carefully recorded.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.