Hello my name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London. In last week’s video, I touched on the Government guidance for getting people back to the workplace. Today I’m going to look at some of the issues arising from this in more detail.
What preliminary steps should an employer take?
An employer owes a duty of care to its employees from two sources in the UK – under common law and also under the Health and Safety at Work Act and its supporting regulations. The duty is for the employer to do everything reasonably practicable to protect the safety of the employees in the workplace. This duty can be complied with by an employer by carrying out a risk assessment of the risks an employee may face, taking steps to remove or minimise the risks, and following up to ensure that those standards are enforced.
One question which we have been asked by employers is whether they are legally required to follow the guidance issued by the Government. The point is that the guidance is not legislative. However, it will be key in deciding whether the employer has complied with its requirements under the health and safety legislation and common law. The guidance should therefore be taken into account in carrying out the risk assessment and also followed to show how the employer has implemented a safe system of work.
So practically, employers should be carrying out a risk assessment first – for example, doing a walkthrough of the business and considering all the issues that arise – and then ensuring that all social distancing and protections can be put in place. An employer may also want to consider carrying out a test run first with a few employees to see if the systems work.
Selecting the employees to return to work.
It may be that in the first instance the employer doesn’t need all the employees in the workplace and indeed, in many cases, the requirements for social distancing and reconfiguration of the working environment will mean that not all employees can return at the same time. For the moment some employees can remain on furlough. But how do you, as an employer, decide who should return?
One of the key points to remember is those employees who have been classified as vulnerable for whom specific government guidance is given. Those who are clinically extremely vulnerable are those who have specific underlying health conditions that make them extremely vulnerable to severe illness if they contract COVID-19. These people have been told to isolate and shouldn’t return to the workplace at the current time. The key point to bear in mind in relation to those employees is that they are likely to be disabled for the purposes of the Equality Act and therefore if they are treated to any detriment or dismissed as a result of their disability (for example, if they refused to return to work) an employer may find that they face potential discrimination claims.
Clinically vulnerable employees are those who are at increased risk from COVID-19 either because they are over 70, are pregnant, or have less serious respiratory diseases. They have been asked to take extra care in observing social distancing. The government guidance is that they should be helped to work from home, either in their current role or in an alternative role. If this isn’t possible they should be offered the option of the safest available on site roles, enabling them to stay two metres away from others. If they have to spend time within two metres of others, an employer should carefully assess whether this involves an acceptable level of risk. Failing to do so could lead to disability or age discrimination claims.
You do also need to take into account the additional health and safety obligations which an employer owes to a pregnant employee. This means carrying out an additional risk assessment before allowing such an employee to return to work.
Another important group of people to consider in the return is those who are living in the same household as those who are vulnerable. While they may not themselves have a protected characteristic the employer will need to be aware of potential associative discrimination claims.
Finally when considering who should return to work the employer should consider reasonable adjustments that can be made for those employees who are disabled. Failure to make such reasonable adjustments could lead to further claims. Reasonable adjustments could include other options rather than a return to the workplace.
Employees who refuse to return to work
What if an employee refuses to return to work? An employer must be mindful of employees’ concerns and also their particular circumstances. If the employee doesn’t fall within one of the vulnerable groups I’ve just referred to, and is not specifically at risk or shielding someone at risk, employers need to consider how they will respond to such a refusal.
Consultation with the employee would be the best approach to explain the steps which the employer has taken and to try to put the employees mind at rest. Dismissal should really be a last resort.
There is a little used provision in the Employment Rights Act, which employers should be mindful of. Where an employee reasonably believes that their workplace poses a serious and imminent threat to their health then, under s44 (1) (d) and s100 (1) (d) they are protected from being subjected to any detriment or being dismissed for exercising their right to leave the workplace or to take steps to protect themselves or others. It’s the employee’s reasonable belief that is important, so the more that an employer can do to show that they complied with the Government guidance and consulted and responded to employees’ concerns, the less likely it is that a tribunal will consider the belief to be reasonably held. The reasonableness of the belief will also depend on the employees own characteristics, so that if the employee is vulnerable, they may hold a reasonable belief in the serious and imminent threat which may not apply to another employee.
One point I would also make in relation to this is that the serious and imminent threat is in relation to the workplace and it is therefore unclear whether an employee’s concern regarding public transport to get to the workplace would give them the protection under those provisions.
How to implement the return
Practically, an employer may wish to ask for volunteers first. Any potential discrimination claims or refusal to return may be lessened if employees have volunteered. Employers should also consider what alternatives are available for those that aren’t selected to return to the workplace. Currently they can be furloughed, but once that scheme has finished, the employer should consider alternative options. This could mean placing the employee on statutory sick pay as those who fall within the vulnerable categories could qualify under the extension of the SSP regulations. The employer could also check the PHI scheme to see if the employee could qualify for payments under that scheme if they are unable to work. You could also, as an employer, consider requesting the employees take some of their holiday entitlement, ensuring that you comply with obligations under the Working Time Regulations and contractual terms.
Employers must also make sure that they are clear on the medical evidence and Government guidance to support any decisions they make on who should return to work. Finally, it is key for employers to consult with employees regarding the return to the workplace to understand any issues they may have.
As ever if you would like any more information on this then please contact me or one of the team at Norton Rose Fulbright. Please continue to stay safe and well. Thank you.