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In revised guidance first published in July, the Government stated that it is no longer instructing people to work from home if they can. In line with that, many employers have planned and begun implementing a return to the workplace. However, as the latest figures and the Government’s recently published Autumn and Winter Plan seem to indicate, it is clear that the risk of contracting COVID-19 will continue to be a genuine and serious one for some time.
Unsurprisingly, many workplaces were not designed with social distancing rules (which are currently no longer imposed by the Government) and a deadly pandemic in mind. Corridors are narrow, desks are tightly packed, open-plan offices are shared by significant numbers of people, and communal areas (not just kitchens and bathrooms, but staircases, lifts, and meeting rooms) are not cleaned sufficiently well or regularly enough to eradicate the risk of infection.
The question then arises: can employers force people to go into work as lockdown eases (notwithstanding the possibility of the “work from home” directive being re-issued if Plan B of the Government’s Autumn and Winter Plan is implemented)? What can employees do if they do not feel safe (travelling to and from work by public transport, for example, or sitting next to and/or working with colleagues who might possibly have COVID-19)? Can they refuse to attend the workplace? What obligations are on employers to keep staff safe?
The answers will depend on the interplay between the following legal principles:
That every employer:
That every employee:
An employee may be protected from suffering detrimental treatment or being dismissed in “circumstances of danger” which they “reasonably believed” were “serious and imminent”, as a result of which they took “appropriate steps” to protect themselves and others.
Whether or not the risk of infection could constitute a “serious and imminent” danger and whether or not a refusal to go into work could amount to “appropriate steps” to protect oneself or others, is a question which will need to be considered on an individual basis.
Employees may also be protected by whistleblowing laws and entitled to significant compensation as a result.
In the present crisis, employers should do what they can to comply with their health and safety obligations but will have to balance these against the need to continue to provide services to keep their businesses afloat and lockdown restrictions being lifted (which, perhaps, indicates a reduced risk of infection).
For staff coming into work, employers should follow current Government guidance on Working Safely during Coronavirus (and continue to monitor changes to that) and consult with their staff about a gradual return to the workplace and the safety measures they will be implementing. Although social distancing guidance (currently) no longer applies, the fact remains that COVID-19 can be spread through social contact and employers should consider how this risk can be mitigated within their premises. They could consider implementing measures to reduce the number of people their workers come into contact with and enforce rules such that if there are concerns about a particular individual (for example, continuous coughing), then that employee should be sent home to get a PCR test and follow the applicable guidelines based on the results (whether or not that employee says “it’s only a cold, not COVID-19”).
If employees have concerns that employers are putting commercial interests before the health and safety of staff, they ought to raise their concerns with their line manager in the first instance. Hopefully, this will lead to the employer putting in place better protections. If not, then employees may need to raise a grievance (or go through their employer’s whistleblowing channels).
Concerned employees might also consider refusing to attend work (although that may open them up to accusations of not being a team player and may not be helpful if redundancies follow). It should be hoped that such a refusal would not lead to disciplinary or other consequent action but, if it did, the employer would need to be ready to justify how it addressed its obligations.
On the flip side, employees may themselves have commercial interests at play. Any personal decision to stay at home may lead to an outcome where the employer accepts the situation but seeks to reduce pay, resulting in reduced income for the individual.
These are unprecedented times and there are no clear cut “correct” answers. There are rights and obligations on both sides of the employer/employee equation. It is hoped that articles like this will shine a spotlight on what those are, and encourage best working practices for employers and employees to navigate through the uncertainty.
If you have any questions or concerns about the content covered in this blog, please contact a member of the Employment Law team.
Natasha acts for both employers and senior executives in a wide variety of sectors including (but not limited to) financial services, law firms and other professional services firms and retail and luxury brands. Natasha is a tenacious litigator and an astute negotiator. She acts in relation to the full range of employment-related issues. She particularly enjoys handling whistleblowing and discrimination cases and helping clients achieve success.
Francesca Lopez specialises in all aspects of employment law. She advises a wide variety of individual and corporate clients on contentious and non-contentious matters.
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