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Legal considerations to heed for the returning to work

Euan Lawrence, Partner in the Employment team at Blacks Solicitors
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Since the coronavirus outbreak was first reported in China, over 185 countries have been infected, which has had a significant international impact. 

This led to the development of the UK’s Coronavirus Job Retention Scheme which has been used to furlough around 8.4 million employees. For people who are still working, many have had to begin working from home to limit the spread of the virus, however as workplaces begin to reopen this is starting to change.

What can you do if you don’t feel safe returning to work?

If people don’t feel safe about going back to work amid the pandemic, the first and most obvious step is to raise any concerns with the employer. 

It’s possible to ask the employer for sight of their risk assessment and for details of the measures taken to mitigate the risks in the workplace associated with the pandemic. If the employer’s response isn’t satisfactory, the employee should confirm why this is the case before taking any steps such as refusing to come into work.

The Employment Rights Act

Sections 44 and 100 of the Employment Rights Act 1996 provides specific safeguards for employees who don’t feel that they are returning to a safe working environment. Specifically, there is protection from being dismissed or subject to any detriment for: 

  • Any employee who reasonably believes that circumstances connected with work are harmful or potentially harmful and raises this with the employer;
  • Any employee who reasonably believes that they are in serious and imminent danger which they can’t be expected to avert and because of this, leaves work or refuses to return to their place of work;
  • Any employee who reasonably believes that they are in serious and imminent danger and has taken appropriate steps to protect themself (or others) from the danger.

Clearly, the key word is “reasonably”. If the employer is rigorously enforcing social distancing, providing for regular cleaning, offering suitable hand sanitation and generally complying with the guidance of Public Health England, it is unlikely that an employee’s general concerns about returning to work due to the pandemic will be sufficiently ‘reasonable’ to afford him or her the protection of the Act.

How to combat fears

An employee’s concerns may be entirely unrelated to the work environment. They may, for example, be concerned about the safety of public transport which they need to take to get into work. From a strictly legal point of view, this isn’t relevant to the employer but it should be taken into account from a people management perspective.

One novel way for employees to combat this could be to make a flexible working application, which is not only related to the hours worked, but also ‘where’ the work is done. Any employee with 26 weeks’ service who hasn’t made an application in the previous 12 months is eligible. While this device was historically used primarily to afford flexibility for those with parental responsibilities, this is no longer the case and it can be used for any situation, including where employees feel unsafe.

Employers who receive such requests must be reasonable and can only refuse for a number of prescribed statutory reasons. If homeworking has been operationally effective during lockdown, it could be challenging for employers to find a legitimate reason to refuse these requests.

Can you be fired if you don’t want to return to work?

Fundamentally, this comes down to the specific circumstances. If the employer has done everything they reasonably can to ensure a safe workplace and an employee still refuses to come into work without a valid reason, the employee is failing to comply with reasonable management instructions. This may, subject to a fair disciplinary process, be grounds for a disciplinary sanction.

On the other hand, if the employee has reasonable grounds for feeling that the workplace is unsafe, dismissal could constitute automatic unfair dismissal under Section 100 of the Employment Rights Act 1996.

It is worth bearing in mind that some employees may not be able to attend work due to childcare responsibilities as a consequence of schools being closed. The situation can also become complicated if an employee has a disability that makes them particularly vulnerable and have been advised by their doctor that they shouldn’t attend work. At present these employees will be deemed to be shielding and should not be required to attend work.

Employers would be wise to approach possible dismissals of employees exercising these rights with significant caution.

 

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