As we move into the next phase of the COVID-19 response, the emphasis of the Government message about staying at home vs going to work has slightly changed.
Those who can’t work from home should now be “actively encouraged to go to work”. In this article we look at employer obligations towards those who are returning to work and those who can’t.
Employees who can return to work
An employer’s legal health and safety duty is to ensure, as far as is reasonably practicable, the health, safety and wellbeing of its employees at work. The duty also forms part of the implied terms of the employment contract and so can be pursued by an employee directly as a breach of contract/constructive dismissal claim.
The Government has produced guidance for employers on how to make workplaces “Covid-secure”. There are separate guidance notes for different sorts of workplace (the details of which can be read at gov.uk) but there are 5 key points which are common to all employers:
- Individuals should work from home if they can and employers should take all reasonable steps to enable them to do so.
- Employers must carry out COVID-19 risk assessments in consultation with unions or workers and if possible publish the results on their website.
- Social distancing should be maintained in workplaces where possible.
- Where social distancing cannot be maintained, employers should take other steps to manage transmission risk where the activity has to continue.
- Cleaning and hygiene processes should be reinforced.
These points are to be implemented “as soon as practicable”. This is not the same as saying they must happen before employees can be brought back into the workplace, but an employer would struggle to show that it had satisfied its legal obligations regarding health and safety if it returned employees to the workplace before having implemented the above. The Government has expressly stated (not that it really should be needed) that employees should not be forced to work in an unsafe workplace.
There are several legal issues to be picked up within all of this and we highlight a few below.
1. Compliance with the guidance will assist an employer in showing that it ensured employees’ health and safety as far as reasonably practicable and complied with employment and equality obligations, but it will not provide an automatic defence. The guidance provides a framework; each employer must consider the risks and mitigations in the context of their own workplace. Of course equality obligations may require an employer to put greater protections in place for some groups – see below.
2. Regarding health and safety consultation, where there is a recognised trade union with appointed safety representatives within the workforce then consultation must be with them. Otherwise employees must be elected to consult with, or consultation can be with the whole workforce. Having to consult on health and safety matters is not a new thing so most employers should have arrangements in place for this, but if not, consideration will need to be given to how to comply given how public this obligation has now been made. Note that the implication in at least one of the workplace guidance notes that consultation cannot be direct with employees does not reflect the law.
3. Even where employers carry out consultation at a collective level, engaging with individual employees is essential. If an employee has concerns about returning to the workplace then the employer ought to discuss those and seek to agree a way forward. Protected characteristics may require additional measures be put in place for certain individuals. Employees are being directed to contact the HSE or local authority if they are concerned their employer is not taking the required steps and in all likelihood this would amount to a protected disclosure for the purposes of whistleblowing. Employers are being urged to make “socially responsible” decisions in respect of employees who don’t want to return to work – the underlying message is don’t dismiss, but it doesn’t have to also mean pay in full for work not done.
4. One of the suggestions to maintain social distancing is to stagger start/finish and break times. Employers ought to consider what contractual flexibility they have to do this, particularly where asking employees to start earlier or finish later than they did before. Whilst adjustments to working hours to enable employees to juggle work and childcare at home up to this point have tended to be agreed on a very informal basis, for both employees returning to the workplace and those remaining working from home for what could be several months longer, more formality may need to be introduced into these arrangements. This is in order to allow employers to plan for remobilisation and ensure that their staggered start time arrangements are controlled so that there are limits around how many people are coming in at any given time.
5. Sources have separately suggested that a legal right to work from home may be introduced. This is unlikely to be an absolute right because it would simply not be practical for all roles, but would probably be something more than the right to request flexible working because an employee could already request to work from home under that regime. For those who are still working from home, it is important that employers recognise that health, safety and welfare obligations are owed to them too.
Employees who can’t return to work
Many employees may be unable to work from home, due to a number of different circumstances, but equally unable/unwilling to return to the workplace. Such groups will include those:
- with childcare or caring responsibilities
- that are clinically vulnerable
- who are anxious about returning to work
- cannot get to work without using public transport
An employer should consider individual circumstances carefully, on a case by case basis and in conjunction with the employee. There may well be protected characteristics in play – age, disability and/or pregnancy. Employers will need to consider the specific reasons that the employee is saying they cannot return to work.
So what are the options available for employers in relation to employees that fall within the above categories?
1. To force an employee who is clinically vulnerable or shielding to return to work could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence, resulting in a breach of contract and/or discrimination claim. The Government’s guidance is clear that any employees who are clinically vulnerable or shielding, as well as individuals whom they live with, should be supported as they follow the recommendations set out in guidance on social distancing and shielding respectively.
2. If the employee is already furloughed the employer may want to keep them on furlough. If the employee has not been furloughed, the employer may consider furloughing the employee. See our separate article on the future of the furlough scheme.
3. For employees that are shielding they will be deemed incapable under the new deemed incapacity rules for Statutory Sick Pay (SSP) and will therefore be entitled to SSP. They may also be entitled to contractual sick pay depending on the definition of incapacity that the scheme uses.
4. For those who pregnant (and therefore “clinically vulnerable”), where the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider suspending the employee on full pay in accordance with regulation 16(3) of the Management of Health and Safety at Work Regulations 1999 if it can’t put them into a safe role in the workplace.
5. It is open for an employer and employee to consider other options, such as:
- Flexible working;
- The employee taking their annual leave, until such annual leave entitlement is exhausted;
- Reduced hours for reduced pay; or
- A period of unpaid leave.
6. Employees with dependents are entitled to reasonable time off work (unpaid unless a policy provides otherwise) to help someone who depends on them in an unexpected event or emergency. School and childcare closures due to Covid-19 obviously caused an unexpected disruption to childcare arrangements at the time but the right to time off is to a “reasonable” amount and query at what point the disruption ceases to be “unexpected”.
7. Even if the employee is not covered by specific advice and there is no discrimination angle, “socially responsible” decision-making should make dismissal for failure to follow a reasonable management instruction a matter of absolute last resort. Dismissal could result in a challenge that it was only done because the employee had raised concerns that returning to work was unsafe, leading to claims for automatic unfair dismissal under whistleblowing and/or health and safety disclosure legislation.
Whilst the Government’s message may now be that those who can’t work from home should be “actively encouraged to go to work”, it is also still the case that they should not do so unless it is safe to do so. With a plethora of new and updated guidance issued by the Government, there is a lot that employers need to do to ensure workplaces are Covid-secure before employees can be expected to return.
If you would like any information or advice on how the above may affect you, then please contact a member of our Employment, Human Resources & Pensions Team or call 0207 880 4263.