Following changes in government guidance, more and more employers are asking staff to come back to the workplace. But what are your obligations as an employer if staff are reluctant or unwilling to return? How should you treat employees who are shielding, pregnant or struggling with childcare?
The HSE’s guidance on Working safely during the coronavirus (Covid-19) outbreak and the Government’s sector-specific guides on working safely during coronavirus (Covid-19) are crucial sources of information.
‘However, the Government guidance does not provide the full picture for employers who must consider the whole gamut of their duties under employment law.’ says Emma Thompson, Head of the Employment Law team, who outlines the raft of legal responsibilities, as well as highlighting key steps to reduce the risks of claims and considerations for particular groups when asking employees to return to the workplace.
What are the risks and potential employment claims?
If an employee refuses to come to work because they fear catching coronavirus, take legal advice before taking any action which might be detrimental to the employee as they may be able to bring a claim for dismissal or detriment on health and safety grounds.
Workers (including employees) can bring a claim under whistleblowing legislation on the basis that they have been treated less favourably because they raised concerns about health and safety in the workplace.
Some employees may also be able to bring discrimination claims.
Employees do not need a minimum period of employment to bring any of these claims. Those with two years’ employment may be able to bring a constructive unfair dismissal claim if they resign in response to an alleged breach of the employer’s duty to provide a safe working environment.
Finally, an employee who contracts coronavirus at work could sue the employer for personal injury.
Key steps to reducing risks
We recommend the following steps:
- carry out a robust risk assessment;
- consult with staff about the risk assessment;
- review the risk assessment regularly as the situation and knowledge about coronavirus develop;
- take steps to ensure that the workplace is Covid-secure, including ensuring measures are enforced and managers set a good example;
- continue to invite feedback and take on board employee concerns, as this can help defend allegations that an employee was treated less favourably because they raised concerns; and
- document all the steps you take, as this will pay dividends should you have to defend any claims.
Employees who are shielding
From 1 August 2020, the Government is no longer advising ‘clinically extremely vulnerable’ individuals to shield and statutory sick pay will not be available for people who are shielding.
However, these changes do not give employers carte blanche to treat these individuals like the rest of the workforce. Many employees who were shielding will be disabled and protected by the Equality Act 2010 from various forms of discrimination.
Keeping a disabled employee on furlough leave while colleagues return to work may not be the solution if the employee receives less than their normal pay while furloughed or is missing out on opportunities at work.
Care needs to be taken in bringing disabled employees back to work. Employers need to be informed about the individual employee’s health condition and discuss this with the employee to avoid making assumptions. It may be a good idea to carry out an individual risk assessment for the employee, to get occupational health advice and discuss this with the employee. Employers need to consider reasonable adjustments for a disabled employee. For example, could the employee’s job be adjusted to allow them to work from home?
Employees with childcare difficulties
This summer, many employees will not be able to rely on their usual childcare arrangements which is likely to have a disproportionate impact on female employees. Insisting on returning to work could invite claims for indirect discrimination, as well as constructive dismissal for breaching trust and confidence between the employer and employee. Employers should consider flexible arrangements, like working from home, reduced hours or unpaid parental leave.
Employers have additional responsibilities for the health and safety of pregnant women and pregnant women have been identified as ‘clinically vulnerable’. Employers should carry out an individual risk assessment for a pregnant employee. If significant risks are identified, you need to alter the employee’s working conditions, for example by working from home. If this is not possible, you must consider suitable alternative work. Where this is not available, furlough leave may be an option. As a last resort, suspension on full pay needs to be considered.
How we can help
Dealing with these complex, overlapping employment rights is challenging. We can advise you on bringing the workforce back while keeping the risks of claims to a minimum.