An increasing number of people are being invited to return to their workplaces as lockdown restrictions are lifted and parts of the economy are allowed to re-open. From the 1st August 2020 the shielding guidance in England and Northern Ireland will be paused (confirmed dates for Scotland and Wales are yet to be announced). This means that people who have been shielding may be asked to return to work.
In this article we will try to answer some important questions based on current information and guidance. Due to the unprecedented nature of the pandemic, there is some uncertainty and the information here is based on employment law as written. If you are experiencing a dispute with your employer it is recommended that you seek expert advice relating to your individual circumstances.
Will I be asked to return to work?
The government’s current official guidance states “People who can work from home should continue to do so”. Therefore, your employer should take measures to assist you to continue working from home, if this is possible. For those who have been shielding, in England and Northern Ireland the guidance currently states that from 1st August 2020 “you can go to work, as long as the workplace is COVID-secure – but carry on working from home if you can”.
Where work cannot be done from home, the government have set out tailored guidelines for employers about how to make the workplace safe (COVID-secure) to help protect their employees and visitors from coronavirus while still continuing to trade or getting their business back up and running.
What is expected of my employer before I return to the workplace?
1. Help you to work from home
In the first instance, your employer should make every reasonable effort to enable you to work from home, either in your current role or in an alternative role.
2. Risk Assessment
If it’s not possible to work from home, before you can return to your normal workplace your employer is required to undertake a risk assessment to check whether the environment is ‘COVID–secure’.
A risk assessment is a legal requirement for all employers and it will explain what they must do to keep their workers and anybody else who may use their workplace(s), safe from harm. They must be ‘adequate’, ‘suitable and sufficient’ and not a cursory inspection.
Employers must identify all those for whom they have a duty of care, whether they are staff or service-users, who are classed as being either at most or moderate risk from COVID-19. A list of criteria for those who are moderate or high risk is available HERE. Many people with lupus are considered to be moderate or high risk. If you don’t know your risk category, please take a look at our article HERE. In addition to the NHS list, research has shown that Black workers are at increased risk of infection, serious illness and death through COVID-19.
Your employer’s risk assessment should identify what hazards currently exist or may appear in the workplace. It defines which workplace hazards are likely to cause harm to employees and visitors. Employers must also set out the measures they will take to address the hazards they have identified. COVID-19 is a hazard that may cause you harm. Employers must therefore put in place measures to prevent its spread.
The government has provided guides covering a range of different types of workplace and how to make them COVID-secure. The guidance for England can be found HERE (separate guidance is available for Wales, Scotland and Northern Ireland).
For clinically vulnerable individuals who cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable). If your employer cannot maintain social distancing, they should carefully assess whether this involves an acceptable level of risk.
3. Continue to support ‘clinically vulnerable’ staff unable to return safely.
If your employer’s risk assessment reveals that they cannot currently accommodate clinically vulnerable staff within an acceptable level of risk and they are unable to re-deploy you or provide opportunities to work from home, then they should consider offering special paid leave.
In many cases, an employer may continue to furlough a clinically vulnerable employee who is unable to safely return to the workplace using the government’s Coronavirus Job Retention Scheme. New registrations for this scheme ended on 1st July 2020. From this date, only employees who have previously been furloughed for at least three consecutive weeks at any time between 1st March and 30th June 2020 are eligible for more grants under the scheme. In addition, from 1st August 2020 employers will be asked to contribute towards the cost of furloughed employees’ wages. The scheme is currently due to end on 31st October 2020.
If you are not able to be furloughed and your employer is unable to provide special paid leave, you should at least be entitled to Statutory Sick Pay (SSP) and any occupational sick pay your employer offers.
What if I feel unsafe returning to my workplace?
You should never be in a situation where you might endanger yourself and others in the course of doing your job. If an employer were to put you in that situation, it is potentially a breach of health and safety law.
If you are still being asked to return to your workplace and believe you are at risk, in the first instance, it is important to talk to your employer.
If you are unable to reach a satisfactory agreement from discussions with your employer you may wish to raise your concerns with union safety representatives, or ultimately with the organisation responsibility for enforcement in your workplace, either the Health and Safety Executive or your local authority.
As a last resort, if a person reasonably believes there is a risk of being exposed to serious and imminent danger in their working environment and it cannot reasonably be avoided, every employee has the right not to suffer detriment if they leave, or refuse to attend their place of work (section 44 of the Employment Rights Act 1996). The context of a situation will be key on whether refusing to return to work or any other steps are considered appropriate. This means that an employee cannot automatically refuse a reasonable instruction to return to work without a good reason.
What if the problem is related to public transport?
Let your employer know if you’re struggling or unable to get to work safely because of changes to public transport services or difficulty maintaining safe social distance during your commute.
In many cases it would be considered a reasonable adjustment for your employer to agree to flexible working hours (allowing safer access to public transport), access to free parking or consider providing private transport (for example, taxi).
What if I have family members who are clinically vulnerable?
If you live with someone who is clinically vulnerable then best practice is for your employer to allow you to work from home.
If it is not possible to work from home and it would be an unacceptable risk for you to return to the workplace, your employer should consider offering special paid leave (such as continuing to furlough you).
If you are not able to be furloughed and your employer is unable to provide special paid leave, you should at least be entitled to Statutory Sick Pay (SSP).
Unfair treatment and dismissal
An employee or worker is protected by law against unfair treatment and dismissal, if it is because of:
– a health condition that is considered a disability under the Equality Act 2010
It does not matter how long someone has worked for the employer.
It could be unlawful discrimination on the grounds of pregnancy, disability or age if an employer either:
– unreasonably tries to pressure someone to go to work
– unreasonably disciplines someone for not going to work
Where can I go for help?
If you are experiencing financial uncertainty and hardship as a result of changes to your employment, we have provided information about various sources of support, HERE.
If you require expert advice relating to your personal circumstances, please contact one of the organisations below:
You can get advice on your specific situation and your employment rights by visiting the Acas website or calling the Acas helpline, 0300 123 1100.
You can get information about your rights and guidance relating to your situation from your local Citizens Advice. Find your local centre HERE.