Returning to Work, The New Normal and The Uncharted Territory for Employers.
Following the most recent Government announcements that those who cannot work from home, such as Warehouse Operatives and Construction workers, can now return to work where safe measures can be implemented, and social distancing adhered too, and that non-essential shops can re-open we want to look at what this means for employers.
There will no doubt still be concerns amongst employees, and employers for that matter, about returning to work for one reason or another. What does this mean then if an employee refuses to return to work, or what happens if the employer does not or cannot implement a safe place to return to work. Here we answer the commonly asked questions.
What legal obligations do we have to protect our employees?
Under the Health and Safety at Work Act 1974 s.2(1), ‘it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his/her employees’. This core duty extends not only to facilities and equipment, but to the provision of systems of work that are safe and without risks to health, and the provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees. A failure to do so is not only a criminal offence but may also attract liability for compensation and/or unfair dismissal.
In addition to the above, employers need to follow any relevant regulations and guidance which has been issued by or on behalf of the Government. The Government has issued and re-issued guidance which relates to the coronavirus pandemic which can be accessed here. We all know by now, and if you don’t, where have you been? That the Government’s announcement in respect of businesses reopening was that they must be able to offer a safe environment to work and adhere to social distancing measures.
As well as the above requirements, there is also the common law duty of care, and unique to the employment scenario is the implied term of mutual, trust and confidence.
It is therefore important for employers to know their obligations in terms of health and safety so that they can make an informed decision on whether or not they can safely re-open and reintroduce their employees back to work. Any breaches of the above obligations could result in injury, and risk health, which in turn may attract criminal and civil liability. Therefore, it is very important that employers consider the company’s position in terms of whether they can open, what obligations they have and whether they can safely accommodate a return to work.
Although the approach taken and requirements needed by employers will be different depending on the particular type business and the specific workplace, the fundamental principles surrounding a healthy and safe place to work apply to all employers and will be relevant to everyone.
What can we do to protect the health and safety of our employees when the return to work?
The impact and spread of COVID-19, has seen a decline over the last few weeks but it is still very much alive, and what we as a country do not want to see, is a second spike. Now more than ever is crucial in beating the virus and all companies and businesses should be doing their bit to help prevent this. The research into the spread and the ability to limit that however is still developing, which makes protecting employees that bit more difficult.
Nevertheless, under the Health and Safety at Work etc Act 1974, employers must conduct a sufficient risk assessment of all their work activities which are carried out by their staff and the manner in which they are carried out, to identify the areas of risk so that measures can be put in place to reduce the same. This is not a case of business as usual when companies decide to re-open. Given the constant evolution of policy and guidance it is imperative that these risk assessments are kept under review.
In this regard, it may be worthwhile seeking the work forces view on measures as this will encourage and reassure staff that things are being done to keep them safe and may hopefully deter any litigation for health and safety reasons. Furthermore, depending on the nature of the business, it may also be sensible to include trade unions in such discussion. If employers are able to agree a safe system of work with staff representatives or trade unions that is likely to enable a smoother transition for returning staff to the workplace and more importantly defend any allegations that the employer is being unreasonable.
Employers are legally required to provide employees with specific information about health and safety risks and the measures to prevent and protect against those risks. Therefore, it is crucial that any measures adopted for the business is converted to writing, this will enable the employer to evidence the measures and steps that they have taken, and are taking, to reduce the risk of the virus.
A few examples of some measures an employer may be able to put in place are as follows:
· Re-arranging desks and workstations to adhere to social distancing rules;
· Limiting the number of people who are in the office at any one time. This could include, split shifts through the day or even split shifts over different days of the week, and allowing people to continue working from home;
· Staggered start and end times to avoid overcrowding at entrances and exits;
· Providing PPE;
· Using floor markings to mark two metres in communal areas; or alternatively closing any common areas where social distancing will be difficult to achieve;
· Giving employees who travel in on public transport flexibility with start times to avoid rush hour transport;
· Limiting customer and client contact;
· Restricting non-essential meetings or work social events and encourage use of electronic methods of contact;
· Providing access to handwash, hand sanitiser;
· Encourage staff to bring food from home to limit contact outside the workplace;
· Increasing cleaning of the premises.
Are we also responsible for the mental well-being of our employees?
At the current time we have seen that mental health has become a crisis of its own with more people worrying now more than ever and suffering from anxiety or depression. Particularly employees who are concerned about returning to work and the security of their positions. Employers should always consider how to protect the mental health of their employees and provide guidance to managers on how to assist and when to escalate concerns in any event, but this is more crucial in the current climate.
Effective and encouraging communication with staff will help with mental health concerns and reassure the workforce that their safety is a consideration the company is taking into account. For example, if the company has an Employee Assistance Programme available it may be worthwhile highlighting this to employees and offering advice to them on how this can be accessed. Also, where there is an outsourced counselling service for example, this should be highlighted to employees and again advice on how to access such schemes. If the company does not have any such facility or service, they may wish to consider sourcing one, or enquiring with the workforce whether there is any appetite for such service. If there is little take up, then employers could offer ad hoc sessions for the select employees who highlighted an interest.
If the company does not have the resources for outside professional services. It may be advisable to inform employees who they can speak to if they have any concerns. In that regard, allocating an individual employee may be more suitable. Employers may also wish to consider further training such as a Mental Health First Aid Course for the allocated members of staff. There are a number of course providers, but there is a link here to MHFA England.
Employers are responsible for the safety and well-being of their employees when it comes to work related matters. So, it is important that companies do not loose site of the mental element of a worker’s well-being, as well as the physical aspect of health and safety. The legislation as mentioned above is applicable to a worker’s mental health as well as their physical.
What about shielding employees can I force them to return to work?
Medical professions have previously identified categories of people with certain medical conditions who may be at greatest risk of severe illness from COVID-19. Those classes of the public have been defined as ‘clinically vulnerable; under the Government Guidance, which is currently detailed at paragraph 9 of the Guidance document updated on 4th June 2020. The guidance from the Government, is that those who are clinically vulnerable should stay at home and minimise contact as much as possible and this is currently unchanged.
It is likely to be a breach of an employer’s health and safety duty if an employer insists that such individuals return to the workplace at any time when the government’s shielding guidance remains in place.
Further, an individual who classified as clinically vulnerable because they have an underlying health condition, may also satisfy the definition under the Equality Act 2010 as a disabled person. A person will be classified as disabled within the meaning of the act if they have a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on their ability to do normal daily activities. The test under the Equality Act is generally a low threshold and burden to meet despite public perception. Therefore, it may also be disability discrimination for an employer to insist on an employee’s return to work, or if treat them unfavourable because of a refusal to return to work. Employers need to mindful of such employees, and consider, whether in the circumstances there are any reasonable adjustments that could made to their current roles.
Do we have an obligation to pay a worker who cannot work because of COVID-19?
Following the above, where an employee is advised to shield this does not necessarily mean that they are entitled to be paid in full. Many employers will be able to utilise the Furlough scheme until its expiration if they have enrolled their relevant employees by 10th June 2020.
Please see details of the Furlough Scheme can be found here.
Where the employer is not furloughed, and cannot work from home for whatever reason, they may be entitled to statutory sick pay, or enhanced sick pay depending on the terms of their contract.
One of our shielded/furloughed employees wants to return to work against the Government Guidance what can we do?
Employers need to tread carefully where they refuse entry to work because a worker is advised to shield. As mentioned above, those employees may also be disabled under the Equality Act 2010. If there is a blanket refusal to allow shielding employees back to work this may also be deemed discrimination. Employers should be cautious, particularly given that such claims are yet to be heard in the Tribunals given the infancy of such provisions, and as such there is no guidance on how these matters will be judged after litigation. So, each employee should be treated on an individual basis, and the relevant factors of each case should be looked at in isolation.
For example, where an employer decides to apply a blanket policy of furloughing all employees who fell within the clinically vulnerable group identified under the Guidance, or refusing to allow them to return to work upon a request, then a disabled employee might be able to argue that such policy was more likely to disadvantage them by denying them access to work, giving rise to an argument for indirect discrimination, or a failure to make reasonable adjustments. Indirect discrimination is where an employer has a practice, criterion or policy that applies to everyone equally, but puts those with a particular protected characteristic, at a disadvantage. However, with indirect discrimination claims, it may be open to an employer to argue that they had a justifiable excuse for such policy as they were trying to follow Government Guidance, but this would be judge on a case by case basis.
In addition, it may also be open to an employee to argue that they have been directly discriminated against by being placed furlough for which there is no justifiable excuse defence. Direct discrimination is where an individual is treated less favourable because of their protected characteristic than someone who does not share the same protected status.
Where an employee wants to return to work, it would be advisable to discuss with the employee what their intentions and wishes are and identify whether that can be accommodated. If an employer is of the view there are no measures that would alleviate the risk, they should consider an alternative role for the employee where they can work from home or offering them full pay. If the employee is adamant about returning to work, it would be sensible to refer them to occupational health or seek confirmation from a medical professional. In those circumstances, It may also be worthwhile drafting an agreement for the employee to sign stating that they have returned of their own free will against the employers and Government’s Guidance. If the worst were to happen, whilst an employer cannot contract out of liability for personal injury it would be persuasive evidence in any defence to show that the worker was contributory negligent to their injuries and any court or Tribunal has the power to reduce any damages by up to 100%.
If an employer, is still not convinced that they can offer a safe environment, and the risk is simply too high, then they may wish to state this to the employee that the request to stay at home is a reasonable management instruction, and one that will not be loosened until further guidance from the Government is received. As it is important to remember that the obligation on an employer under the Health and Safety at Work Act 1974 imposes criminal liability where safety is not adhered too.
What can our business do about workers who live with someone who is clinically vulnerable?
In addition to clinically vulnerable employees, employers also need to consider what to do about employees who live with someone who is clinically vulnerable and has been advised to shield.
Employees in this group will no doubt argue that requiring them to return to work will risk putting the clinically vulnerable person they live with at an increased risk. Again, as mentioned above employers will need to carry out a suitable risk assessment to determine the extent of the risk and whether any steps can be taken to reduce it. The course an employer takes will be very much dependent upon the individual circumstance of each case i.e. how does the worker travel to and from work, will they have contact with others, can they work from home? Employers need to be alive of the possibility of discrimination by association.
What happens when one of our employees has childcare issues?
Employees with childcare issues may be eligible to be placed on furlough as their ability to work may have been affected by the coronavirus given the closure of schools. The eligibility for the scheme was that employees needed to be enrolled by the 10th June 2020 at the latest in order to qualify. Where an employee has not been furloughed under the Flexible Furlough Scheme for one reason or another there are other potential options open to employers and employees to allow for time off to take care of dependents.
Firstly, under section 57A of the ERA 1996, all employees are entitled to be permitted by their employer to take a ‘reasonable’ amount of time off during working hours in order to take action which is necessary:
· to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted
· to make arrangements for the provision of care for a dependant who is ill or injured
· in consequence of the death of a dependant
· because of the unexpected disruption or termination of arrangements for the care of a dependent
· to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him
This is usual called “time off for dependents”. It is arguable that the current pandemic gives rise to such time off. There is however no statutory right to be paid during such time off. Employers are nonetheless free to agree to pay for such time off, and some employment contracts provide a right to be paid during such periods. Employers may also make provision for paid time off or complement the rights under statutory scheme in other ways, in their policy on time off for dependant.
Where an employee has taken such reasonable time, it is important to note that they are entitled not to be subjected to a detriment by any act, or any deliberate failure to act, by an employer because they have taken, or requested to take, time off for dependants. If they are this would open employers up to liability so it is imperative that this is taken into consideration.
The difficultly with such leave, however, is the amount of time off allowed under the right is limited to that which is 'reasonable' to take the action required. In light of the current climate it is difficult to say how long the need to stay at home to care for dependents will likely last, and if the need was to continue for some weeks/months it is unlikely the time off would be covered under s.57.
In addition to the above, an employee may be entitled to time off under the Maternity and Parental Leave Regulations 1999, SI 1999/3312, Reg 15, parents of a child (whether born to the parents or adopted) which states that parents are entitled to take up to 18 weeks of unpaid leave to care for that child at any time before the child's 18th birthday. 18 weeks' leave may be taken in respect of each child. The leave may be taken by each parent.
The default position under the Regulations is that an employee may not take more than four weeks' leave in respect of any individual child during in any particular year. This can however be extended by consent. Again, in such circumstances there is no statutory right to be paid for such leave.
What can an employer do if an employee refuses to return to work?
In the current climate it is to be expected that people will be cautious and worried about returning to work irrespective of whether they are vulnerable or not. There is likely to be a number of people who are reluctant to return to work because they think that it is unsafe for them, or their children, or whoever in their household. Employers will be well advised to have discussions with these employees to get to the bottom of their concerns.
Technically speaking an employee cannot refuse a reasonable management instruction and returning to work may be deemed as such. Therefore, if an employee refuses to return to work then an employer may be entitled to initiate disciplinary action or withhold pay. However, before this is actioned, it is important that as employers, you have satisfied your obligations in terms of health and safety (as discussed above). Employers must satisfy themselves that there is no underlying health concerns of the employee or anyone in their household. This is imperative in today’s climate as employees are entitled to claim automatic unfair dismissal (irrespective of 2 years’ service) where they have been dismissed because they have raised health and safety concerns.
Here at Legally Blogged we appreciate that this is an extremely stressful and worrying time for our readers and everyone for that matter, and we hope that you find the information contained in this blog useful. If you would like any further information or clarification on the above, please do get in touch here.
PLEASE NOTE: This blog is a general summary of the law and it should not replace legal advice tailored to your specific circumstances. If you require specific legal advice then contact us using the Direct Access form which can be found here.
