When considering whether an employer has subjected a worker to a detriment with the sole or main...
COVID-19 and returning to work
We answer some of the most frequently asked questions which are coming up in practice in relation to those who cannot work from home and are being asked to return to the workplace.
There are natural concerns from employees being asked to return to the workplace as undoubtedly many would prefer to remain on furlough, protecting their health and their families, until there is zero risk or a viable vaccine. However, many employers will not survive any prolonged period of shutdown. Although the furlough scheme is available in its current form until 31 July 2020, many employees are key to the success or failure of the business and not having them back will impact a businesses’ ability to survive.
Various government bodies and organisations have published helpful guidance:
- DBEIS - Working safely during coronavirus (COVID-19)
- ACAS - Coronavirus (COVID-19): returning to the workplace
- Working safely during the coronavirus outbreak
- Social distancing, keeping businesses open and in-work activities during the coronavirus outbreak
- Using PPE at work
- House of Commons Library - Coronavirus: returning to work
- Public Health England - Disparities in the risk and outcomes of COVID-19
Q: What obligations do we have to make our workplace safe?
A: The government has devised some general guidance after consultation with 250 stakeholders including unions and Public Health England. An employer has an obligation to provide a safe place of work but this does not mean providing a place of work that the employer can guarantee is entirely free of the risk of catching COVID-19. The employer is expected to have taken reasonable steps as set out in the guidance, with particular emphasis on social distancing where possible, cleaning and reinforcing handwashing. There is also sector specific-guidance.
It is also worth noting that the guidance need only apply if employees are coming back to work and are unable to work from home at all. If there is an option to work from home, then employers should encourage employees to do so.
Q: Do I have to do a risk assessment?
A: Yes, no matter how big or small the organsation. You must also consult with your employees/unions about it. If any of your employees are pregnant this is a specific type of risk assessment.
Q: Do we have to publish our risk assessment?
A: The government guidance says that an employer must publish the results of the risk assessment, not the assessment itself. For those with 50 or more employees the government ‘expects’ to see the risk assessment on their website. This is only guidance at the moment but it may become enshrined in regulations.
Q: Does our risk assessment have to be done by a third party?
A: No. Although there are many organisations offering their services as ‘experts’ there is no requirement to do so – what is required is a common sense approach by someone who knows the business and also to involve the employees themselves as they may have some good ideas.
Q: What if the nature of our business means that social distancing is not possible?
A: Consider alternatives such as smaller shifts, isolating different groups, and wearing PPE. The government accepts that not all businesses will be able to socially distance and gives practical guidance such as side-by-side rather than face-to-face and keeping windows open as much as possible.
Q: How do we end furlough?
A: The mechanism for ending furlough will be contained in the letter sent to employees when they were first placed on furlough. If the letter did not cover this, then contact the employee and let them know when they are expected to return to work.
Q: Can an employee insist on remaining on furlough?
A: No, under the current scheme rules, the decision on furlough is entirely that of the employer.
Q: What if the employee wants more time to get used to the idea?
A: If you are able to do without them for a few days more then you can suggest that they use holiday or take a period of unpaid leave.
Q: What if the employee refuses to return?
A: The important point is that an employer must talk to any employee to understand what their concerns are about returning and tell them what they have done to try and make the workplace safer. It is entirely understandable that there will be anxiety about returning to the workplace after such a long period and given the obvious concerns about the virus, but different situations should be considered separately and individually. For those in at-risk groups, those with conditions which say they should shield, those shielding others and those with caring responsibilities, see below.
However, if all of that does not allay the employee’s fears then consider offering them unpaid leave or ask them to take holiday. If they do not want to do this and still refuse, then as confirmed in the ACAS guidance, this could be a disciplinary matter and an employee could potentially face dismissal if they refuse to return.
Q: What if the employee’s children are not back at nursery/school?
A: Discuss with the employee whether they can come back part time – and share the caring responsibilities with their partner, rather than it just falling on one parent. Consider extending the furlough scheme or use of unpaid leave/holidays.
Q: What if the employee has children who are not back at nursery/school even though the school/nursery is open?
A: If the option is there for children to return but the employee does not want them to return then talk to them about the reasons why. If the children have underlying health conditions then an employer may consider extending furlough for those with caring responsibilities. Alternatively look at unpaid leave or use of holidays.
Q: Can an employee insist on taking time off if they have caring responsibilities?
A: There are two instances where an employee can insist on unpaid time off:
- An employee is entitled by law to unpaid time off to deal with emergencies for their dependents and usually this is just to deal with the immediate and unforeseen emergency and not for ongoing situations where alternative cover should be in place. However, in these extraordinary times where the options for alternative cover are very limited (non-existent given current social distancing and shielding of the elderly) then it would be a very harsh employer/employment tribunal who decided that the need to be at home was not covered by this legislation.
- Employees who have been employed for more than a year can request up to 18 weeks’ unpaid parental leave for each child under 18 – to be taken in blocks of a week and capped at four weeks a year. They must give 21 days’ notice to their employer and it can refuse if their absence would cause serious disruption to the business and suggest an alternative date within six months.
Q: What if the employee says they have a condition which means they have to shield?
A: The employee should have received a letter or email from their GP which they should supply to an employer. Consider either furlough or statutory sick pay (SSP).
Q: What if the employee is living with someone who is clinically vulnerable?
A: Consider furlough or unpaid leave/using holiday.
Q: What if the employee is pregnant?
A: If a pregnant employee also has heart disease (or any other condition listed by the government as being high risk) then they are in the highly-vulnerable group and should be shielding. For those without heart disease as COVID-19 is an infectious disease then the level of risk at work must be ‘in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace’. Given that the government advice is avoid public transport and keep two metres apart, then it is arguable that a pregnant woman being asked to come to work on public transport is at a greater risk in the office than at home. If this is the assessment then they should be found alternative work. If there is no alternative work, then consider furlough. The law says that a pregnant woman in an unsafe workplace should be sent home on full pay. If they are living in a house where everyone has returned to work then there is just as much risk of catching the virus at home than at work and so the risk is no different when at work – unless they are working in for example testing COVID-19 patients or nursing COVID-19 patients.
Q: Are BAME employees at increased risk?
A: Yes. A report from Public Health England reveals that the mortality risk among those diagnosed with COVID-19 is higher in those in BAME groups than in white ethnic groups.
Q: What if the employee is in a high-risk category because of a health condition, their ethnic make-up or their age?
A: Look at finding them the safest role on site – where they do not have to interact with other people and if that is just not possible then consider whether this is an acceptable risk level. For instance, if they are living in a house where everyone has returned to work then there is just as much risk of catching the virus at home than at work and so the risk is no different when at work – unless they are working in for example testing COVID-19 patients or nursing COVID-19 patients. If it is not an acceptable risk then consider furloughing them or offering unpaid leave.
Q: What if the employee is frightened of travelling on public transport?
A: Look at making adjustments to their start and finish times to avoid busy times and offer face masks. If they still do not want to come in then look at unpaid leave or using holiday. For those who are pregnant or vulnerable perhaps also offer to pay for them to park close to the office.
Q: What if an employee has been abroad during furlough and is now wanting to return?
A: Further enquiry should be made of where they have been and what they have been doing since they returned. If government advice is that they should self isolate when returning from that part of the world then they can be put on SSP for two weeks and the employer can reclaim it. However, if there is no such advice the employee will argue they are ready and able to start work and are not ill, showing symptoms or in a house where there are those with symptoms and so should be allowed back or paid. However, consider furloughing them for a three-week period and allowing them back after that time if they are symptom free and no-one in their household has symptoms and perhaps even consider a COVID-19 test now that these have been opened up to everyone over the age of five.
Q: The media is talking a lot about employees being protected on the grounds of health and safety if they refuse to come back – is this right?
A: This is a reference to s. 44 and 100 of the Employment Rights Act 1996 which creates a right not to be subjected to a detriment or dismissed for those employees (not workers) who:
‘in circumstances of danger which the employee reasonably believed to be serious and imminent … left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work’
There is no qualifying period of employment to benefit from these protections and compensation for a successful claim is uncapped. Existing case law suggests that these concepts are broadly interpreted. The ‘danger’ does not have to be in the workplace itself. An employee who fears returning to work because of the need to use public transport might possibly be protected as long as it was accepted by a tribunal that the risk of contracting COVID-19 on public transport was a ‘serious and imminent danger’.
Whether an employee’s belief was ‘reasonable’ will depend on factors such as:
- the extent to which the employer has assessed risks and followed guidance
- whether any further safeguards such as PPE can be provided, or other mitigation measures taken
- whether the work means that certain safeguards cannot be taken, and
- the vulnerability of the employee
Each case will be decided on its own facts but as infection rates fall and travellers are encouraged to wear face masks on public transport then unless they are in one of the highly vulnerable groups where catching the virus may lead to hospitalisation or death, it is hard (but not impossible) to see a tribunal accepting that the employee reasonably believed there were in serious and imminent danger. To do so would make it almost impossible to get any employee back to work for the foreseeable future.
Q: Can we refuse to pay someone who refuses to return to work because they think it is not safe?
A: Yes, but as with all matters, there are risks. An employee wary of using public transport may argue that they reasonably believed they were in serious and imminent danger, especially if they are in an at-risk group, have underlying health conditions and no-one else on the public transport is wearing masks. They will argue that not being paid was a detriment under ERA, s. 44. If they resigned in response to not being paid, they could bring a constructive unfair dismissal claim under ERA, s. 100.