A number of difficult questions arise as the Government begins to ease people back to work.
After being locked down for eight weeks, since the 23rd of March, many people will be feeling uneasy about returning to their workplace.
Employers are responsible for creating a Covid-safe work environment. The Government has issued guidance for employers on how to work safely in different types of workplace. In addition to that, employers will need to conduct an exercise in employee relations in order to reassure anxious employees who are uncertain whether they should return.
Employers are urged to take socially responsible decisions and listen to the concerns of their staff. Employers and employees should come to a pragmatic agreement about their working arrangements. Employees who are unsure whether their employers are meeting their legal obligations are recommended to approach Acas for impartial advice.
Back to school?
The news media are giving a huge amount of coverage to the proposal for a phased return to school for children in England, beginning on the 1st of June. This has proved extremely controversial. Where a return to work is proposed, the Government advises that employers and staff should “discuss and agree working arrangements”. It is clear that, faced with a reaction from the education and teachers’ unions that has been described as “furious”, resulting in a recommendation to their members not to engage with their headteachers over reopening, the Government cannot expect a smooth transition into the first phase of the plan.
Social distancing is seen as the key weapon in combatting the coronavirus epidemic. But teachers and helpers are being asked to go back to work without being able to implement it.
Does the current law offer any protection?
There is already a legal framework which protects workers and employees refusing to work in unsafe environments or raising concerns with their employers.
It is automatically unfair to dismiss an employee who leaves work because he or she reasonably believes that being at work presents a serious and imminent danger. There is no qualifying period of employment and damages are unlimited.
The employee’s belief must be genuine and reasonable. So long as it is, the test is subjective. In other words, the fact that one employee may be comfortable returning to work does not mean that another employee cannot justifiably refuse to return because, for whatever reason, they don’t feel safe.
Bethany is a helper in a children’s nursery, who has been told she must return to work as the nursery is reopening. She does not herself feel vulnerable, but her husband has received a letter from the NHS telling him he is at higher risk of severe illness from coronavirus because of an underlying health condition. The letter tells him to take extra steps to shield himself, and to stay at home for at least 12 weeks. Can her employer dismiss or discipline her if she refuses to return?
An employer, as the law stands, is entitled to insist she comes into work even though she lives with a vulnerable person. They are entitled to treat a refusal to come into work as a disciplinary matter, as being absent without leave. The consensus among employment lawyers seems to be clear, that dismissal in those circumstances would be outside the range of reasonable responses and would very probably be automatically unfair. In addition, the Employment Rights Act protects an employee if, in circumstances of danger which they reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themself or other persons from the danger.
Moreover, the Government guidance on opening schools, issued on 12 May, included the following:
“If a child/young person or staff member lives in a household with someone who is extremely clinically vulnerable, as set out in the guidance on shielding, it is advised they only attend an education or childcare setting if stringent social distancing can be adhered to and, in the case of children, if they are able to understand and follow those instructions. This may not be possible for very young children and older children without the capacity to adhere to the instructions on social distancing. If stringent social distancing cannot be adhered to, we do not expect those individuals to attend.”
It seems clear from this that Bethany could not be disciplined or dismissed for refusing to return to work.
The answer is less certain if Bethany’s husband was clinically vulnerable (but not clinically extremely vulnerable). Clinically vulnerable individuals are at higher risk of severe illness (for example, as a result of some pre-existing conditions), but are not in the extremely clinically vulnerable group. The clinically vulnerable group have been advised to take extra care in observing social distancing, but the Government advice is that an employee in that group, or living in the same household as someone in that group, can attend an education or childcare setting. Bethany would have to rely on the subjective test of serious and imminent danger to her husband and discuss it with her employer.
Can Bethany expect to be paid if she doesn’t return to work?
If someone does not want to go back to work, after having been given the opportunity to do so, they may be able to arrange with their employer to be put (or remain) on furlough, or to take time off as holiday. The employer does not have to agree to this. Employees in Bethany’s position must rely on the goodwill of their employer and may have to settle for unpaid leave.
This note is based on Government announcements and guidance at the date of writing (22 May 2020). There is more detail in the official guidance and this summary cannot cover everything. I will be pleased to answer any specific questions if you email me at firstname.lastname@example.org