Practical Employment Law Considerations For Returning to Work

Managing employee numbers

Large volumes of employees returning to a shared workplace (especially if public transport is used) represents a huge risk for the spreading and contracting of Coronavirus so the phased return approach has been introduced.  Only those whose roles require them to be in the office/workplace will return first, with others who can remote work being asked to continue to do so.

Deciding which employees are essential to restarting workplace activities is likely to be difficult.  Some employees may be very keen to return, and others less so possibly because of the ongoing risk of Coronavirus and the preference for home working generally.

This is the time to consider your company’s plan as each business will be different. It has been suggested that you could consider staggering the introduction of employees to the office by splitting teams across functional lines who attend the office at different times. Working from home is likely to continue for some time to come and may become a permanent feature.

Safety measures

We have already been warned that social distancing is likely to be around for some time. This is likely to be easier for some workplaces and roles than others. Given the time that it may take to make arrangements, planning now is likely to make reintegration to the workplace easier.

Within the workplace you may want to consider:

Testing for infection or antibodies by the employer is an area which likely to become of interest but one that is not risk-free. Do you have the contractual right to test employees and how are you going to retain the information whilst complying GDPR.  These are things you can review before reintegrating your employees.

Health & Safety

Employers have a duty to provide a safe place of work and to protect the health and wellbeing of their employees. There is a raft of legislation enforcing this and employers will wish to avoid claims in this area.

It is important not to forget that your employees and their families will continue to be anxious about the risk of coronavirus. So what do you do if having implemented physical changes within the office you have an employee who refuses to return to work because they are worried that their risk of catching Covid-19 continues possibly because of the use of public transport but also because of the risks associated with the workplace itself?

There is a section under the Employment Rights Act 1996 namely s.100 which is not often used but could be in this scenario. If an employee has a reasonable belief that they may be placed in serious or imminent danger (they could have conditions or be deemed to be in the vulnerable group) and as a result they refuse to return to the workplace or work or leave the workplace then they may have protection. If they are dismissed then any such dismissal could be automatically unfair, there is no minimum length of service and there is no cap on compensation. If the employer decides instead to reduce pay or place them on furlough as a result of any concerns raised, then if the employee resigns as a result then that constructive dismissal may be automatically unfair. This needs careful handling.

Good communication is essential and to ensure that you understand the employee(s) concerns and to explore how they may be alleviated if possible. Normally, an employee’s failure to turn up and perform their job unless ill or with the employer’s authority would amount to a breach of contract, and likely lead to disciplinary action or dismissal without notice. The current crisis alters this basic position in several ways.

Disciplining the employee or terminating the employee’s contract of employment for their refusal to return to work is not an option as stated above if they have reasonable grounds. If an employee reasonably believes that going into work puts them in serious and imminent danger due to Covid-19 (including on their commute) they can stay at home while continuing to be entitled to full pay. Detriments imposed by employers in response to this, including any disciplinary action or pay deductions, may be unlawful (pay deductions will also be “unauthorised deductions”) and dismissals where the refusal is the reason, or principal reason, for the dismissal will be automatically unfair.

The crucial questions are, therefore: does an employee believe that Covid-19 poses a serious and imminent danger to them, and is this a reasonable belief for them to hold? Although the answers will turn on the circumstances of each case, it is likely that in the current crisis many employees will reasonably hold such a belief, and so have the right to stay at home without detriment or dismissal.

Whilst an Employment Tribunal might be convinced that in workplaces where protective equipment is provided and social distancing rules are strictly adhered to, the risk of infection is sufficiently reduced to bar a reasonable belief in imminent danger this would be considered on a case by case basis. The fears or many employees who genuinely believe they are in danger if they go into work should be taken seriously particularly vulnerable groups of employees, or where the employer has not provided appropriate protective equipment or failed to introduce and enforce social distancing rules.

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