Coronavirus and going back to work


Coronavirus

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Coronavirus and going back to work

UPDATED 27 MAY 2020

The government has now published its Covid-19 guidance to help ensure workplaces have the necessary health and safety measures in place to enable people to go back to work. The government’s guidance for England states that employers should “discuss the workplace risk assessment with you to identify thepractical ways of managing those risks”.

What are the 5 key points of the government guidance?

The guidance sets out practical steps focused on 5 key points, which should be implemented as soon as it is practical.

1. Work from home, if you can.

All reasonable steps should be taken by employers to help people work from home. But for those who cannot work from home and whose workplace has not been told to close, our message is clear: you should go to work. Staff should speak to their employer about when their workplace will open.

2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions.

This guidance operates within current health and safety employment and equalities legislation and employers will need to carry out COVID-19 risk assessments in consultation with their workers or trade unions, to establish what guidelines to put in place. If possible, employers should publish the results of their risk assessments on their website and they expect all businesses with over 50 employees to do so.

3. Maintain 2 metres social distancing, wherever possible.

Employers should re-design workspaces to maintain 2 metre distances between people by staggering start times, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in break rooms. Social distancing applies to all parts of a business, not just the place where people spend most of their time, but also entrances and exits, break rooms, canteens and similar settings.

4. Where people cannot be 2 metres apart, manage transmission risk.

Employers should look into putting barriers in shared spaces, creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, or ensuring colleagues are facing away from each other.

5. Reinforcing cleaning processes.

Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.

What do the guidelines say about commons work areas?

The guidelines state as follows:

– Your employer should work collaboratively with landlords and other tenants in multi-tenant sites/buildings to ensure consistency across common areas, for example, receptions, staircases.

– Break times should be staggered to reduce pressure on break rooms or canteens.

-Use safe outside areas for breaks.

-Create additional space by using other parts of the workplace or building that have been freed up by remote working.

– Install screens to protect staff in receptions or similar areas.

– Provide packaged meals or similar to avoid fully opening staff canteens.

– Encourage workers to bring their own food.

-Reconfigure seating and tables to maintain spacing and reduce face-to-face interactions.

– Encourage staff to remain on-site and if this is not possible, maintaining social distancing while off-site.

– Regulate the use of locker rooms, changing areas and other facility areas to reduce concurrent usage.

– Encourage storage of personal items and clothing in personal storage spaces, for example, lockers and during shifts.

Can I refuse to go back to work if my employer has taken all reasonable steps to ensure my health and safety?

It is understandable that you will be concerned about your health and the increased risk of catching the virus in the workplace. The government has made it absolutely clear that you should be able to work from home where this is at all possible.

This FAQ focuses on the assumption that all necessary health and safety measures have been put in place. If they have not, please see the FAQ below this one.

Under your contract of employment, you are obliged to follow the reasonable instructions of your employer. What is considered to be “reasonable” is usually straightforward and it may very well be a fair dismissal to terminate your employment for refusing a reasonable instruction to return to work. Other ways of dealing with the defiance to the order (such as a warning) should, however, be exhausted first. A tribunal considering this would want to be satisfied that any employer made clear exactly what the employee was required to do, and crucially took all reasonable precautions for appropriate health and safety.  Your employer’s compliance with Government guidance would be absolutely expected to be carried out.

It may also be that you have a legitimate reason for not going back to work. This could arise, for example, because you are unwell, someone else in your home self- isolating,  you have an underlying health condition or are pregnant. If this is the case, you may be able to claim disability discrimination if you are then forced to go to work and/or no reasonable adjustments are taken into account.

A fear of catching the virus when you have no underlying health conditions is, however, unlikely to amount to a legitimate excuse not to attend work. Of course you can still raise your concerns and highlight a specific activity that is putting you risk of catching or spreading the virus, but without clear evidence you could find your self at the sharp end of disciplinary proceedings, and worse case scenario you could lose your job.

These are unique times, and you should always discuss your concerns with your employer and try to agree an amicable solution. There is  a strong moral responsibility for employers to ensure that their employees and workers feel safe and secure in their employment. There is also a legal obligation that your employer should do everything it can to protect its workforce while complying with latest government advice.

What can I do if my employer has refused to introduce social distancing measures?

The Government has said employers should try to ensure workers are two metres apart from one another where possible, stagger start times and keep workplaces well ventilated. If you are instructed to go back to work without sufficient measures being in place to protect you from contracting the virus, this could be a breach of the health and safety duties by your employer, and also be a breach of the duty of care that underpins your employment relationship. Asking you to work in circumstances of danger may constitute constructive dismissal for which an unfair dismissal claim may be brought.

The Prime Minster has said that there will be spot inspections carried out to safeguard returning staff during the Covid-19 crisis. He also stated that staff with concerns that not all “practical steps” are being taken to promote social distancing can report companies to their local authority or the Health and Safety Executive (HSE). Local authorities and the HSE “can take a range of action, including where appropriate requiring your employer to take additional steps”.

You should enter into a sensible dialogue with your line manager or HR to discuss these issues, and if necessary and as a first step lodge a grievance if the situation is unresolved.

What if I go back to work, realise the danger and just leave?

Your employer cannot subject you to a detriment (say loss of wages or discipline) if you just left the place of work or any dangerous part of the place of work in circumstances of danger which was serious and imminent (which you could not reasonably be expected to avert). These principles derive from EU law.

Whether the danger is sufficiently “serious and imminent” will depend on what facilities are available to you to avoid the danger. This can relate to dangers caused by the behaviour of fellow employees, not just your employer. You can bring a claim for compensation in the employment tribunal if you are dismissed or have your wages withheld, although every case will be determined on its own facts.

 

We are a leading firm of employment law solicitors, acting for employees and senior executives in the City and throughout the UK. For more information on the coronavirus and your rights and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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