As the Prime Minister made an announcement of easing the lockdown and setting out a three-step plan, Labour has called for greater clarity on how workers are meant to return to their jobs.
Employees should be able to work in a safe environment, meaning that there is work to be done by employers, firstly in planning how they are going to do this and secondly, communicating their plans to staff.
Planning a safe return to work
Some employees, especially from vulnerable groups, including those who are pregnant, aged 70 or over, or who have a long-term health condition, will be anxious about health and safety of returning to the workplace.
Employers should speak to their staff as early as possible about the measures that will be put in place to safeguard their health and safety of returning to work. There is no minimum period of notice the employers are required to give employees but from a practical point of view a reasonable amount of time should be given allowing the employees to know what the employer’s plan is. Employers need to listen to any concerns that employees might have and try to resolve them together.
When planning a return to work, employers are advised to:
- consult with staff and employee representatives, including any trade union representatives and health and safety officials;
- carry out a robust risk assessment and check if there are risks of harm to anyone in the workplace, especially to employees from vulnerable groups;
- make the workplace as safe as possible for staff, customers and anyone else who visits.
It's good practice for employers to:
- hold meetings as remote calls and avoid travel as much as possible;
- make sure the layout of the workspace allows social distancing;
- be especially careful and take extra steps for vulnerable groups, including those who are pregnant, aged 70 or over, or who have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy;
- make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace shows symptoms of the virus;
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly;
- provide hand sanitiser and tissues for staff and encourage them to use them;
- make sure everyone's contact numbers and emergency contact details are up to date;
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace.
If an employee does not want to return to work
- Employees who are at higher risk might feel they do not want to return to work.
Employees who have been shielding for health reasons should not be required to return to work. They should remain on furlough until the scheme runs out or on sickness absence where appropriate. It is anticipated that the government will publish further guidance in relation to this group of people, which the employers need to factor into the return to work plan.
Employers should listen to any concerns the employees may have and should take steps to protect their staff.
- Where an employee cannot return to work due to childcare responsibilities, employers will have to be flexible and find a way to handle the situation until schools re-open or the employee makes alternative arrangements. Employers must avoid discrimination. Any disciplinary action or dismissals on the basis that the employee is unable to return to work as a result of lack of childcare will be unfair.
- If an employee refuses to return to work because the employer has failed to provide them with PPE and it is a requirement of a particular role that PPE is worn, then the employer must provide this to the employee. If the employee is dismissed as a result of the refusal to return to work or subjected to a detriment as a result of raising a health and safety concern or sent home without pay, then potentially they have a valid claim for the detriment or a claim for automatically unfair dismissal.
It could be argued that the employer’s failure to adequately control or mitigate a risk of exposure to the infection constitutes serious and imminent danger, which entitles an employee to refuse to return to work or any dangerous part of their place of work.