May 12, 2020
On Sunday evening many of us watched the TV attentively listening to every word as Boris Johnson delivered his statement to the nation. Was he going to ease the lockdown? Were schools to return?
The ‘Stay at Home’ message on the lectern was changed to ‘Stay Alert’, suggesting a change in approach was to follow. As a specialist employment lawyer, I have spent the last few months guiding employers and businesses in the region to help them through the enormous and often extreme challenges brought about by COVID-19. So that evening I was particularly interested in what the Prime Minister had say about returning to work.
Whilst home working was still encouraged there was now a change in the government’s position in saying that employees who cannot work from home were encouraged to return to the workplace.
However, whist that position on working arrangements may have changed, the law on health and safety at work has not.
In short, all employers must still do all that they reasonably can to set up a system of safe work and then to ensure that it is implemented.
All employers must comply and whilst the law has not changed, the look of a “safe” workplace has now fundamentally changed and there is not a one size fits all answer to compliance as all workplaces are different.
One thing is clear though, employers will need to carry out risk assessments and key questions will need to be considered about how to provide for social distancing, cleaning arrangements and provision of PPE in dealing with the public, amongst many other matters.
Whilst Boris Johnson may have given the impression on Sunday evening that it was fine for everyone to simply rock up to work the next day if they could not work from home the reality is very different.
The good news is that central government has, on May 11, published eight guidance documents – called Working Safely During Coronavirus (COVID-19) – for different industry sectors.
Reviewing and complying with this guidance will be crucial for all employers. This is also important so that employers can demonstrate compliance to employees, many of whom will, understandably, be fearful of returning to the workplace.
So, what does an employer do when an employee says that they can’t or won’t return to work?
In normal circumstances and pre-COVID-19 this could reasonably be viewed as a disciplinary matter. However, we would advise employers to exercise caution.
As with health and safety laws employment laws have not changed either.
Many employees will, of course, have good reason for having concerns about returning to the workplace.
Some will have underlying health conditions or live with family members at high risk. Others may be pregnant or need to remain at home to care for children with schools and nurseries still closed.
The law provides specific protection to employees who suffer disadvantage or are dismissed where they report health and safety concerns to an employer under the Employment Rights Act 1996.
In addition, employees reporting health concerns may be protected as ‘whistle-blowers’.
Employees who have or share a home with someone who has an underlying health condition may be protected under disability discrimination laws set out in the Equality Act 2010.
These are just a few examples and there are many areas of employment law which could be tested in the coming months if there is tension between employers attempting to restart businesses and employees unable or unwilling to return to work.
The health crisis is presenting some huge challenges to businesses.
Our message to employers and businesses in the region to best manage risk and avoid disputes is to read and follow the government guidance, carry out a risk assessment and sensitively review and consider personal circumstances and concerns when dealing with individual employees.