Seven top questions on returning staff to work during coronavirus

We answer the top seven employment law questions on the transition from home to work.

The current position

Before thinking about how and when to return employees to the workplace, employers should note four key changes which took effect from 1 August 2020.

• Shielding was paused. This means that those who are classified as “clinically extremely vulnerable” can return to work, as long as it is ‘Covid secure’. But extremely vulnerable employees should continue to work from home wherever possible.
• Statutory Sick Pay for ‘shielding’ employees ended.
• Government advice against using public transport was eased.
• On 22 September the guidance in England changed so that, instead of encouraging employees to return to their workplace, the government has said that office workers who can work effectively from home must do so over the Winter. 

The guidance in Northern Ireland (NI) and Scotland remains to work from home where possible. The Welsh government guidance is to maintain physical distancing if it is not possible to work from home, and the Welsh government aims to encourage homeworking beyond the pandemic, to include the creation of “community-based working hubs.”

From 28 September 2020, employers in England that knowingly allow or force staff to come to work when they should be self-isolating can be fined up to £10,000. It is now also a legal requirement for employees and agency workers to notify their employer that they require to self-isolate and for how long. 

The government’s guidance documents, for 14 different types of workplace (including links to specific guidance for each of the devolved nations), can be accessed via a main landing page here.

Seven FAQs on getting the return to work right

1. How do you meet your health and safety obligations to staff in the workplace during the coronavirus pandemic?

There are three key elements to this, which are as follows.

• Undertake a risk assessment.
• Establish a system of safe working: in the context of the coronavirus, you must follow the specific guidance for your particular working environment.
• Implement step 2 above. For example, ensure that Covid secure procedures are clearly communicated, staff are trained and the requirements are followed in practice.

In our experience it is the third point that most often gets overlooked: implementation.  So it’s really important to make sure that once you have undertaken your risk assessment and established a safe system of work, you follow up on that and make sure that  procedures are being followed.

2. Can an employee refuse to come to work if they are concerned about whether their workplace is safe, but they don’t have a particular vulnerability?

Employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for

• leaving work; or
• refusing to return to work

if they have a reasonable belief that they are in ‘serious and imminent danger’ (sections 44 and 100 of the Employment Rights Act 1996/articles 68 and 132 of the Employment Rights (Northern Ireland) Order 1996).

So, if an employee is dismissed or suffers a detriment (such as having their wages reduced) because they refused to work due to a serious coronavirus risk, it is possible they may be able to bring a claim. 

But it is difficult to anticipate how employment tribunals will define the meaning of ‘serious and imminent danger’ in the context of the pandemic.  A wide approach is usually taken to interpreting this phrase and, in February 2020, the government issued a declaration of ‘serious and imminent threat’.   So does this mean the special health and safety protections would apply?

It may depend on to what extent an employer has managed the risk.  If an employer has taken all reasonable steps to implement social distancing and other precautions in a workplace, it is questionable whether an employee could establish a claim.

That said, given the legal risks of dismissing and / or deducting pay in these circumstances, the more pragmatic approach may be to try to find a solution that works for both parties. For example, a mix of home / office based work, taking leave, moving the employee into a different role or putting the employee back on furlough (until 31 October 2020). 

3. What should you consider if a vulnerable employee refuses to return to your workplace?

Even though shielding has now been paused, this scenario is a little more complex.  You should consider

• any specific concerns raised by the employee; and
• possibly consider individual risk assessments.

If the employee is disabled, consider involving Occupational Health or other specialist medical professionals. Reasonable adjustments under the Equality Act 2010/Disability Discrimination Act 1995 (Northern Ireland) may be required.

As outlined at question 2 above, you may need to offer other options, such as moving the employee into a different role (without reducing their pay). If the employee’s condition means that they really cannot return to work safely, you may need to put them on a health and safety suspension, on full pay.

Finally, you may need to tailor your approach for BAME employees, as emerging evidence suggests that the virus is disproportionately affecting those from the BAME community – please see our previous Briefing for more information.

4. Can you discipline or dismiss employees who persistently refuse to follow your Covid secure procedures?

In short, yes. Usual rules of fairness would apply and you must ensure that

• the rules had been clearly communicated,
• your usual disciplinary procedures are followed, and
• if you go ahead and dismiss, the employee is offered the right of appeal.

5. Do you need to take account of an employee’s concerns about taking public transport to work?

Advice against using public transport has been lifted and there is no specific legal duty to protect an employee’s health and safety on their journey to work; only when they are at work.   

However, in these unusual circumstances, tribunals may take a broader approach – and in a 2014 case called Edwards v the Secretary of State for Justice, the Employment Appeal Tribunal accepted that employees were entitled to object to a dangerous journey to work. That case concerned prison officers who refused to be transported to work by prison bus along a closed road in snowy conditions.  However, it is possible that the decision in that case was influenced by the fact that the transport to work was provided by the employer.

So, this is a tricky issue and there is very little case law to guide employers.  In practice, the safest option is to follow the government guidance and HSE guidance on travel to work – for example, allowing staggered start and finish times and encouraging other modes of transport – and discuss any concerns raised by employees.

6. Can you refuse a request for flexible working if an employee has been working from home during lockdown? 

If an employee has been working well from home for an extended period, it will be difficult to refuse a request for flexible working, especially given that the guidance for the whole of the UK is now to work from home if possible. This is, however, only guidance; not legislative requirements, as was the case at the start of the national lockdown.

 Requests should be dealt with in the usual way. You will need to deal with requests in the order they are received and approach each request proportionately, bearing in the mind the risk of claims for discrimination if a request is refused.

Remember that although schools are now open, returning to the workplace may be difficult if employees do not yet have full care arrangements for children back in place: some employees will be dealing with staggered start / finish times at school / unusual timings and some wraparound care may not be open.

7. Could you be liable if an employee contracts coronavirus at work?

This is theoretically possible but, in practice, unlikely. First, the employee would have to show that you had failed in your duty to provide a safe working environment (as described at question 1 above).

Then the employee would have to prove that they contracted coronavirus at work (or, possibly, on the way to work) as a result of your failure.  Given that there are a wide range of ways in which someone could contract coronavirus, it would probably be very difficult for an employee to prove that their illness was caused by their employer.

Updated on 07 October from an original article published on 15 September 2020. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 15 September 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.