With lockdown measures being eased, we partnered with DAS BusinessLaw to look at the main issues faced for both employees and employers returning to work.
Disclaimer: This article has been produced by DAS BusinessLaw, our legal provider partner. Access to DAS BusinessLaw is available to most eligible Arch commercial policies. This information is intended for use by licensed insurance brokers only. It has been produced by DAS Legal Expenses Insurance Ltd. and should be considered for general information purposes only. Arch is not responsible for the content of this article. For more information on anything discussed below, please contact your local Arch branch.
The Return to Work: A Guide for Employees
With lockdown measures being eased, my employer has asked me to return to work but I don’t feel safe. Can I refuse to come back to the workplace?
This depends upon the situation itself. Your employer owes you as an employee a duty of care. The law is very clear on the fact that if you feel that your place of work is unsafe, then you would be protected when taking certain measures, an example of this could be refusing to attend.
The law is there to protect you when it comes to your safety, and you therefore should not be put to any detriment as a result of taking such steps. If you are treated unfairly, dismissed or you choose to resign as a result of you raising health and safety issues, then you may have a claim against your employer under the Employment Rights Act 1996.
Whether you would be justified in your claim would be dependent on a number of factors. The Employment Tribunal would consider factors such as whether your concerns and beliefs were reasonable and justified, whether employers had followed any guidance, and the extent of the danger you would be placed under if you return to work.
The employer owes a duty of care to all employees, and if the employers have implemented all reasonable steps and is complying with all safety measures, and risk assessments have been carried out, then unless there is a medical reason for your concerns about returning, the employer may consider you to be on unauthorised absence that could result in disciplinary action.
I have been asked to return to work but do not feel safe using public transport. Can I refuse to return or insist my employer pays/organises safe transport to and from work?
This is an unprecedented area, one that is unlikely to provide definitive guidance until cases begin to be held at Tribunal.
Although your employer does owe a duty of care to you and other members of staff, they do not have an obligation to arrange or pay for any safe transport to and from the work place (unless contractually obliged to) and this is generally not a reason to refuse to attend. However, as above, should you have any concerns around the safety of travelling back and forth to the workplace, you could approach your employer and raise this with them.
Individual circumstances may be considered, and certainly relevant at a Tribunal, for example someone with an underlying medical reason may be more justified in their refusal to use public transport based on health and safety grounds and thus having the additional protection provided by the Employment Rights Act.
I’ve been furloughed but I don’t feel safe to return to work, even with lockdown easing; can I refuse to return to the workplace and ask to remain on furlough?
As aforementioned, this depends upon the situation itself. It would be best for you to firstly raise any concerns that you have with your employer to begin with. Furlough was put in place by the government under the Coronavirus Job Retention Scheme and it is to be used by employers when they are unable to operate, or have no work for you to do because of national restrictions and impact by coronavirus.
If you have been asked to return to work, this suggests that furlough no longer applies and work is available. Failure to return to work without good reason could be classed as unauthorised absence.
My medical history makes me more vulnerable to the virus. Can I refuse to return to work until I feel comfortable and safe to do so?
This will be dependent on the individual circumstances. You could firstly raise this with your employer informally if you feel the workplace is unsafe. Should you not get the answer you had hoped for, then you could consider the more formal route of a grievance which could outline your concerns with regard to health and safety.
You could also consider speaking with your GP for some advice with regards to your medical history and whether they can give any recommendations or suggestions that you could put forward to your employer (if any). Should the risk be too high then a fit note may be an option. However, failure to have good reason for not returning to work could be considered as unauthorised absence.
If you do have a genuine reason and health concerns that affects your ability to return to work, best practice would be to ensure that you have a letter or fit note confirming the need to remain off work due to the risks.
I have recovered from Coronavirus. Does this mean it is safe for me to return to work and interact with colleagues?
As long as you have followed current guidance from the NHS and have recovered, then it should be fine for you to return to work. However, it is still essential that you adhere to social distancing (and any other government guidance) at all times.
Should you get symptoms again, then you should follow the relevant NHS and medical guidance. It is also imperative that your employer has carried out health and safety and risk assessments to ensure that the workplace is safe for you and everyone else.
I wish to return to work but I live with someone who is clinically vulnerable. Can I continue to work from home until the threat of infection has passed?
In this situation it would be best to speak with your employer in first instance to see what their approach would be. They may continue to allow you to work from home (if possible). Should their response not be what was hoped for, then you could raise it formally as a grievance, outlining your concerns around health and safety. However, if you refuse to return without your employer’s consent, then this could be deemed as unauthorised absence and may be subjected to disciplinary action or dismissal.
If I don’t want to return to work, can I negotiate with my employer to continue working from home? Can an employer refuse my request and is there a risk I might be dismissed?
Ultimately, this would come down to what the reasons are behind your request, and whether it’s sustainable for you to be working from home. Should you have any concerns about returning to work, then you could always run these past your employer to begin with and then escalate if required as above.
You may also be eligible to make a formal request to work from home; in this situation, your employer would have to justify any refusal by relying upon one of the specific statutory grounds.
With regard to dismissal, the law is there to protect employees who raise health and safety concerns, sometimes known as whistle-blowing. This is regardless of length of service, and if you are able to show that you have “whistle blown,” then you are protected by the law.
Whistle-blowing includes reporting any concerns relating to health and safety and you therefore should not be put at any detriment for doing so. Should you be dismissed, you could potentially have a claim for an automatic unfair dismissal.
I believe I may be developing symptoms of coronavirus and have to self-isolate. Will I still get paid if I self isolate when my colleagues return to work?
You may be entitled to Statutory Sick Pay (SSP) as long as you are eligible. The government has brought in legislation which allows employers to pay employees who are off with symptoms and isolating from day one.
You may be eligible to claim SSP if:
- You are self-isolating because you or someone you live with has coronavirus symptoms.
- You are self-isolating because you have been notified by the NHS or public health authorities that you have come into contact with someone who has the virus.
- You are self-isolating because you’re at high risk of severe illness from the virus, also known as shielding.
It is still advised for you to follow any sickness policies that you have in the work place, such as how you report in to avoid any disciplinary action being taken.
The Return to Work: A Guide for Employers
My employee is refusing to return to work. What can we do?
During the current crisis, it can be quite tricky to manage employee relations, especially from a distance. We are starting to see employers encounter an issue where they are removing employees from furlough and requiring them to return to the workplace. Some employees simply do not want to return.
Is it acceptable for an employee to refuse to attend work even in the current circumstances? Is there anything employers can do to resolve this issue?
This is a difficult issue and one where you as an employer, needs to tread carefully.
As a starting point (as is the case with most employment-related issues), it is advisable to have a discussion with your employee to establish why they are refusing to return to work. It may be something that can be resolved informally after a discreet and reassuring conversation.
What if an employee is self-isolating but isn’t required to do so?
If an employee is choosing to self-isolate but isn’t required to do so according to the government guidance, then the employer should have a discussion with them about their concerns and take into account their personal circumstances.
It may be that the employee is feeling anxious about the risk of infection, in particular the inability to control others’ actions outside of their own home. Whilst difficult, an employer should take the time to understand the employee’s concerns and work with the employee to try to resolve them.
It is possible that the employee is suffering with a mental condition or symptoms of anxiety, which is something that is likely to occur across all industries given the complexities of COVID-19 for all. Flexibility and understanding is needed.
If an employer suspects an employee may be unwell and needs to speak to a GP, there is no harm in discussing this discreetly with the employee.
Most employees will be looking for reassurance that their employer has carried out substantial risk assessments into how social distancing measures are going to be implemented following lockdown. They will want to know how they can access the facilities, how they can use the lift (particularly if they have mobility issues) and how are they going to avoid coming into contact with others on the stairwell as well working with others on site.
Employers must work on getting operating procedures in place not only from their own health and safety risk perspective but also to provide reassurance to their workforce, reintroduce them to the workplace and fulfil their duty of care to their staff. Is there a possibility for the employee to continue to work from home? Would this assist the employee? If this can be facilitated, it ought to be considered seriously.
Where there is no clause in the contract of employment which gives the employee the right to full pay in a situation where they are not arriving for work, then the employer has the right to withhold pay if the employee is not available for work. If the employee is not unwell and not eligible for contractual sick pay or SSP, an employer may wish to gain the employee’s agreement to a period of unpaid leave for assurance.
An employer can begin disciplinary proceedings against an employee who is unreasonably refusing to work. However, in the interests of the employer–employee relationship this should be a last resort. The employer must discuss the employees concerns with them first, understand the reasons why they are not willing to work and see if they can be resolved by reassuring the employee of measures that are being taken to ensure the safety of employees.
Do employers need to be wary of employees whistleblowing?
If an employee makes it clear to their employer that they cannot return to work because they are concerned about their health and safety, this could amount to whistleblowing. It is important for an employer to tread carefully, as an employer should not penalise an employee for whistleblowing, or for making a protected disclosure.
An employee may state that they are not attending work because it is not safe to do so. It may amount to a protected disclosure if an employee states that they consider that someone’s health and safety is likely to be endangered.
The employer should distinguish between the employee disclosing that their health and/or safety may be in danger, and the employee refusing to work. They should listen to the employee’s concerns and address them, and if the employer does decide to withhold the employee’s salary or instigate disciplinary proceedings, it should be clear that this is in relation to the employee failing to attend work and not because they raised concerns. Again, an employer should tread carefully with such action, and we strongly recommend that legal advice is taken prior to taken any action.
Employers need to ensure that their whistleblowing policies are up to date and accessible to employees. It is important to make sure that managers are trained on these policies so that they are able to spot when an employee may be whistleblowing and to ensure that no detrimental or negative treatment is used.
What if an employee is refusing to work because they need have childcare issues?
If an employee raises that they are experiencing childcare issues and it is impacting their ability to work, the employer should firstly have a discussion with them and take into account their personal circumstances.
If an employee is unable to work due to childcare reasons, they are able to request that they are placed under the Coronavirus Job Retention Scheme. But employers can reject their request. Alternatively, an employee can request to use their annual leave or can request to take unpaid leave.
An employer should also handle these matters with care and should not put an employee at any detriment or dismiss an employee directly due to them exercising their right to time off for dependents and/or their right to take parental leave. We strongly recommend that legal advice is taken prior to taken any action.