Following last night’s Government announcement that the final stage of the roadmap out of COVID comes into effect on 19 July 2021 has been received with mixed responses. Many questions are being asked about returning staff to the workplace and what are the “rules”.
As the restrictions are lifted the government has decided that moving forward the return to the workplace, social distancing, mask wearing should be decided by the employers. What is crucial is for a safe return and with that poses many questions. Guidance from what we have established will not be reviewed until 19July 2021, but we have set out some of the considerations for your planning to return to the workplace, and we await the Government publications which have to date been sector-by-sector guidance and will be replaced with new generic advice.
COVID H&S Risk Assessments Review
It is imperative that you carry out a H&S Risk Assessment review prior to the 19 July and update where necessary any changes to the Risk Assessment that may come into effect with the lifting of social distancing, mask wearing. It is important that you involve your workforce as it is them that will need to ensure that they feel safe and not at risk returning to the workplace. Unions are challenging the announcement last night that without guidance, there are potential risks and legal challenge risks from employees against their employers if they fail to ensure, so far as reasonably practicable, the health, safety and welfare at work of all its employees (H&S at Work Act 1974, Section 2) and this includes risks from COVID.
The HSE has information on its website (due for a further review on 19July), about working safely and returning to the workplace and provides advice about good ventilation within the work area. Please read our guidance below on H&S.
Testing Your Staff
There is no legal requirement to COVID testing in the workplace, and many organisations who are introducing this is on a voluntary basis or as part of a workplace policy(except essential workers). However, it is important that no one can be forced to be tested. Any decision to test your staff (for their benefit and their colleagues) should be discussed with them prior to any implementation.
Staff Concerns about Returning to the Workplace
The last 16 months have been difficult for everyone and its effect on individuals varies. Whilst some have enjoyed the flexibility of working from home, some employees have and continue to struggle with the isolation, zoom/teams’ fatigue, balancing their work with other responsibilities. Communication with your employees and those who have concerns and/or anxiety about returning to the workplace are key. It would not be feasible for any employer to issue a general “we are all back to the office” as the work from home guidance ends, and we must all appreciate that workforces “one size fit’s all” approach will not work.
If any of your staff raises concerns about returning to the workplace, it is important that you alleviate their fears. If once you have revised and updated your COVID Risk Assessment you should share this with your employees and listen to any concerns that they have. As we have been told that we “now have to live with COVID” mask wearing in the workplace (as an example) should be a personal choice and not one necessarily governed by the employer.
We have been asked a generic question “what happens if an employee refuses to return to the workplace”. To enable you to adopt a suitable approach to employees refusing to return to work, we advise thinking about why you need them to attend the workplace as opposed to working from home.
Inevitably, in some sectors working from home is not a feasible option (because their roles cannot be undertaken remotely) so employees will be required to return to work without any room for flexibility.
However, in office-based work environments, there may be greater scope for employees to engage in homeworking on a regular which many organisations are implementing and referred to as Hybrid Working, which is a combination of workplace and home working. That said, just because an employee can perform their roles from home which many have had to do during the pandemic does not give them the automatic entitlement to do so in the longer term.
Many businesses have been able to effectively adapt their working practices to survive through the pandemic, but certain aspects may have suffered or been pushed aside to account for the circumstances.
Therefore, even if employees can carry out their jobs from home, there may be business reasons which enable you to require them to return to the workplace once it is safe to do so such as collaboration, training, performance and effective day to day management of the employees.
Individualised Approach to Employees
It is advisable to avoid general rules regarding return to work across the workforce, as any employee refusing to return to work will have their own personal reasons for doing so.
A duty of mutual trust and confidence exists between you and your employees and sits at the heart of any employer/employee relationship. Therefore, you must act fairly and reasonably when dealing with these types of issues.
It is important to find out why an employee will not return to work as they may have a valid reason and failure to acknowledge and accommodate their individual circumstances may result in them bringing a claim against you.
Health and Safety
Employees have the right not to be subjected to detriment or dismissed for refusing to attend work because they reasonably believe doing so would put them in serious and imminent danger.
Therefore, there may be scope for employees to bring claims on these grounds if they refuse to return to work because they don’t believe that sufficient precautions have been taken to protect them from the risk of Covid-19.
Such claims have already been brought to the employment tribunal, and although they are first instance decisions and not legally binding, the tribunal seems to have taken a strict approach and are certainly holding employers to hand.
Any decision will always depend upon the specific facts of the case, but it seems unlikely that the tribunal will uphold a claim based on general concerns about Covid-19 if you have taken reasonable safety measures, including regular in depth cleaning and providing sufficient hand cleaning/sanitisers.
Although the risk to health and safety caused by Covid-19 can amount to serious and imminent danger for the purpose of a claim, the overarching rationale is that the risk must directly relate to the employee’s working conditions and not just the risk of contracting Covid-19 generally in society.
There is also potential for employees to raise a whistleblowing concern regarding their employer’s failure to protect against Covid-19 in the workplace.
Genuine concerns about Covid-19 in the workplace may be considered a ‘protected disclosure’ and therefore the employee will be protected by whistleblowing legislation.
If an employee has raised such concerns and they are subsequently disciplined or dismissed for refusing to return to work, they may bring a whistleblowing claim.
However, for such a claim to succeed the employee must have raised concerns about an endangerment of health and safety which they reasonably believe is in the public interest and not just concerns over their own personal safety.
Disciplinary Action Is it Appropriate?
For the reasons outlined above, it would be a risky approach to implement the formal disciplinary procedure if an employee refuses to return to work and is it appropriate given the circumstances of their refusal. Each case again would have to be looked at on its own merit and circumstances.
In addition, if an employee has over 2 years’ service, they may be able to bring an unfair dismissal claim if they are dismissed due to their refusal to return to work.
It is essential that you clearly establish the employee’s reasons for refusal and that you address any concerns they may have.
If it is reasonable to require an employee to return because an employee hasn’t provided any reasons for their refusal and they do not have any protected characteristics which could lead to a discrimination claim, e.g. being disabled or pregnant, then you may be able to invoke the disciplinary procedure if they will not return to work in any capacity and more so if you have demonstrated that you have implemented safe working practices.
In this situation, the employee’s actions may amount to misconduct by failing to follow reasonable management instructions and their absence from work would be unauthorised, and therefore unpaid.
As a safer alternative to taking disciplinary action, you could ask the employee to use holiday or take a period of unpaid leave, although this could still carry a risk of claims, and in the longer term you would have to consider the impact that this has on your other employees, workloads etc and also what happens when their holiday entitlement has expired, so although this is an option, on a longer term basis this would not be feasible. However, it could be an option on a short-term basis.
If the employee has genuine and valid reasons for refusal, it is advisable to address the employee’s concerns and try to accommodate their needs as far as possible, for example incorporating homeworking if this is feasible.
If the employee’s refusal is completely unreasonable and unwarranted then disciplinary action or withdrawal of pay may be appropriate, depending on the circumstances.
Many organisations are implementing a non-contractual hybrid working policy for short and mid-term plans and where the longer-term plans of returning to the workplace fully have not yet been decided. Hybrid is a combination of splitting the working week between the workplace and home working.
Hybrid is and has been introduced by many organisations as we start to return to some normality and gives the opportunity of not only work/home life balance but also easing staff back into the workplace gradually.
Black Mountain have a policy if you would like to receive this, please let us know? Hybrid does not replace the statutory Flexible Working Policy for employees who wish to request changes to their workplace, working times etc on a permanent basis.
This document is purely a guidance and is not to be read as legal advice. The team at Black Mountain are as always available to guide you through the forthcoming changes. Our advice is subject to Government updates/legislation changes/guidance.