Post-lockdown rights

With the Government setting out a road map for returning  staff to work following lockdown a number of legal issues have already come to light, and we expect to see many more as businesses and employees are forced to adapt to the new rules and navigate new challenges.

Health and safety – return to work

All employers have a duty of care to protect employees in the workplace under the Health and Safety Act 1974. Employers will need to take adequate steps to ensure that correct protection is in place for their employees. Guidance for employers, employees and the self-employed on working safely during the coronavirus pandemic has been published on the Government website.

Such guidance makes it clear that employers need a written Health and Safety policy if they have over five employees. We would recommend that all businesses have this in place and take active steps now to put in place proper safety measures to protect their staff and limit risks of exposure to Covid-19 in the workplace. Some of the measures we expect to see include:

(1) wide use of PPE. This is governed under the Personal Protective Equipment at Work Regulations 1992 which makes it the responsibility of the employer to provide PPE should PPE be the only reasonable way to protect an employee.

(2) implementation of a proper social distancing policy. This is likely to also impact on grievance and disciplinary procedures given the impact if an employee fails to comply with their employer’s policy.

(3) Hand soaps and sanitiser will need to be made readily available to employees.

(4) Enhanced flexible working arrangements will be needed since it is important that the workspace is not a crowded place and it is recommended that the same group of employees stick together to save mixing different groups when working. Staggering the workforce to come in on different days or at different times is a good way to ensure that employees are protected when travelling. Employees can request flexible working arrangements be put in place.

Childcare issues

Given schools and nurseries are likely to be phased back there will be a large number of employees left without childcare arrangement. In fact, the latest Government guidance suggests that furlough may be used should childcare be the factor for someone not returning to work.

No employee should be discriminated against or forced to come back when they have no childcare. If this is the case, then a grievance should be raised as this can be seen as unfair treatment and may give rise to a claim for discrimination.

Even once childcare reopens employers should give their employees reasonable time to put in place new childcare arrangements if needed and for settling in.

If you find yourself in a position where you are unable to return to work due to childcare issues arising from Covid-19 you should make a request that your employer considers flexible working or even part-time working or a request to conduct a percentage of their work at home, if this is a viable option.  You may also be able to agree an extension to furlough.

If employers attempt to force parents back to work with no childcare in place, then employers may find themselves facing employment action against them.

Returning from furlough & discrimination

For an employer to qualify for the furlough payments an employee must be furloughed for at least 21 days. There should be a furlough agreement or letter in place which sets put how much notice or when an employee can be brought back, if a notice provision is silent then reasonable notice should be given.

In terms of determining who should come back first, a business should consider whether any reasonable adjustments are required for employees who may have a disability and be shielding. They should also consider requests for flexible working and staffing requirements.

There may be a claim for discrimination if an employee is being forced back to work, but has an underlying health condition so feels it is unsafe or if they may be pregnant or in a “at risk” group or they feel they are not being treated in the same way as someone else.

Redundancy

​For any redundancy there needs to be a fair process which does not discriminate.  If you feel you have been selected for redundancy only because you have childcare responsibilities, then this is likely to be discriminatory and unfair.

Refusing to return to work

Employees refusing to return to work due to the Covid-19 risk is a complex issue. It must be handled carefully and depends on the reason for refusing to return. There may be potential claims under the Equality Act 2010 (“EA 2010”) or under constructive dismissal, unfair dismissal and rights under health and safety legislation. However, this is a complex area and specific advice should be sought as to your own circumstances.

The test here is a “reasonable belief” on the part of the employee that there is a “serious and imminent” danger.  Whilst Covid-19 is likely to amount to serious and imminent danger, employers may argue that they have conducted sufficient risk assessments and provided PPE and have their social distancing in place with
their health and safety policies and can therefore refute such claims.  A Tribunal will ultimately decide on the employees’ state of mind as to whether he or she honestly and reasonably believed that there was serious and imminent danger.

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