Returning to work during the Coronavirus crisis: what are employees’ rights?

September 2, 2020

Written by Pam Dosanjh, Consultant Solicitor of Employment Law at Richard Nelson LLP.

Since the 1st August, employers have had more discretion to ask employees to return to the workplace, if it is safe to do so.

The change comes as the government alters its ‘work from home if you can’ message and drops its advice against using public transport.

Businesses who ask their staff members to return to work will have to undertake a COVID-19 risk assessment and put into place safety procedures to manage transmission risk.

With 75% of UK employees not wanting to go back to the office full-time according to a report from Okta, we’ve answered some questions and concerns employees may have on returning to work.

My workplace is reopening, do I have to return to work if I am concerned for my health and safety?

Employees are being urged to discuss any concerns they might have about returning to work with their employers. The government has issued extensive guidance to ensure that workplaces are COVID-19 secure but employees should offer suggestions if they think there are other measures that could be taken to protect the workforce.

If you do not attend work because of safety concerns, your employer could treat your absence as unauthorised and follow its disciplinary process. Employees do however have legal rights not to be dismissed for raising health and safety claims.

Can workers refuse to return to work?

If you believe there is a real danger to going to work then you can refuse to return to work. Should you be dismissed for not returning to the workplace then you could have a claim for unfair dismissal.

The government has urged employers and employees to discuss returning to work and address any issues or concerns so refusing to return should be taken as a last resort.

If employees are unhappy about the safety of their workplace and the employer has not addressed their concerns, they should consider contacting their local authority or the Health and Safety Executive, who can force firms to take action.

Do employees with underlying health conditions have to return to work?

From the 1st of August the 2.2 million people in England classified as being clinically extremely vulnerable are no longer required to shield and can return to work. You should discuss any concerns with your employer as they may be able to reassure you about the safety measures they have implemented.

Employers do have a responsibility to protect vulnerable workers with underlying health conditions which may include varying their duties or keeping them on furlough until it is safer for them to return.

Can employees request to work remotely a few days a week?

Employees with 26 weeks service can make flexible working requests (which may include home working). Employers should deal with such requests usually within 3 months, but can refuse the request. 

As mentioned above, employers and employees have been urged to discuss any plans to return to work. If you are still able to work effectively at home for a few days a week then you should discuss this in conversations with your employer. Ultimately the decision will come down to them.

What health and safety measures must an employer implement?

There are strict guidelines employers must adhere to – ensuring workplaces are COVID-secure and this includes completing a risk assessment.

The safety guidelines include:

  • Maintain 2 metre social distancing where possible,
  • Where people cannot be 2 metres apart, then maintain 1 metre with risk mitigation.
  • Implementing one-way systems to minimise contact
  • Develop cleaning, handwashing and hygiene procedures

If my children are at home, can I be forced to go to work?

Prime Minister Boris Johnson has said that if schools are not open and workers cannot get childcare, employers should not expect staff to return.

While it is not necessarily legal protection if you refuse to go to work, Mr Johnson said parents and guardians who are unable to return “must be defended and protected on that basis”.

The government has published full guidance on working safely across a range of sectors on its website. It is worth noting there is separate advice on returning to work for Scotland, Wales and Northern Ireland.

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