Your legal rights on returning to
work during COVID-19

Whilst the prime minister's broadcast on 10 May did not open the floodgates to City employers requiring staff to "return to work" en masse, most firms are already drawing up plans for how that should be organised and many of us will have been thinking about what will happen when employers start to update their 'work from home' advice.

What if you do not want to return to work yet? If that is the case, you should consider the following:

1. Crystalise why it is you do not wish to return and explain that to your employer as soon as returning is discussed. Preferably, do this in written correspondence.
2. It may be that you or members of your household are clinically vulnerable or that you are pregnant. The Government has made clear that particular care is required to minimise any contact such people have with people outside their households.
3. Point out to your employer that the Government has stated many times in guidance that “for the foreseeable future” workers should continue to work from home “wherever possible.”
4. If you can, make clear in writing how well you have been working at home. Where possible, evidence this.
5. If travel to work is an issue such as because it involves a long train journey, explain to your employer why, again in writing.
6. Make enquiries about the specific Covid-19 Risk Assessment your Employer should have undertaken and published internally, what safe systems of work have been identified and whether these have been put in place.
7. If you have concerns find out who your “Health & Safety” representative is and establish contact. Ultimately there are statutory protections available for employees who do not want to return to work because they believe it would be unsafe for them to do so.
8. If you have a concern about your Employer breaching Health and Safety (or other statutory) obligations, think about raising this as a public interest disclosure which may make you a whistleblower with protection against suffering detriment or being dismissed.
9.  If you have a disability protected under the Equality Act 2010, you will be entitled to ask for reasonable adjustments to be made before you return to work. It may also be that you are a member of a particular ethnic group which renders you more susceptible to the effects of the virus. Whilst research in to this is on-going, this may be something that can be raised if this is a concern for you.
10. Consider whether you are entitled to take advantage of any statutory leave arrangement or take holiday. If childcare is the issue, the Prime Minister has himself suggested this is a factor that may prevent an employee from being able to return to the workplace.

Conversely, what if you are anxious to get back to work but are not one of the first asked to do so? There is no statutory right to insist on returning to work at the current time, but there are factors you can call upon that may assist.

1. Can you show you are a key worker and should be prioritised for return? A recent assessment undertaken by UBS apparently identified traders in this category.
2. It maybe that you are finding it difficult to work at home for reasons that may not be obvious to your Employer. Explain the position and seek to demonstrate how your effectiveness will increase if you return.
3. If appropriate, seek to reassure your Employer about the state of your health and lack of susceptibility to the virus.
4. Reassure your Employer about your proposed transport arrangements to and from work.
5. If you feel there is a discriminatory reason you are not being selected or because you reported a health and safety breach, you may want to consider whether to raise this.

Either way the reality is that this is a very dynamic area of law at the moment, so be alive to developments. There may be changes you can use to support your position. Ultimately however, safety will be king, and no sensible employer will want to take risks with an employee’s health, particularly if well-articulated and recorded. The risk of liability will mean Employers will want to tread carefully before pressuring an employee to return, or seeking to discipline those who have valid reasons for failing to comply with an instruction to return to work.

Further information 

This article was first published in efinancialcareers on  20 May 2020, Your legal rights on returning to work during COVID-19 .

If you would like any further information or advice about the issues  explored in this blog, please contact Richard, Andy or another member of our employment law  team.