The Government's guidance sets out how an employer can look to reopen their workplace in eight different settings. It provides advice on the nature of the workplace risk assessments that need to be undertaken and the steps that are required to be undertaken to ensure that social distancing can apply where possible in these settings.
These guides have been prepared by the Department for Business, Energy and Industrial Strategy with input from firms, unions industry bodies and devolved administrations and in consultation with Public Health England and the Health and Safety Executive.
Employers must recognise that some categories of employee may not be able to safely return to work, either due to their own vulnerability, or that of a member of their household. Employees may also object to returning to work simply because they do not consider it safe, notwithstanding changes to working practices in place. Childcare will remain an obstacle for many. It will be important for employers to consider individuals' personal circumstances and concerns and take advice where necessary. Specific legal protection against detriment and dismissal applies in relation to health and safety concerns and certain categories of staff, for example, disabled employees and pregnant women.
This note looks at the initial steps employers should take to ensure they are in as strong a position as possible to ask staff to return to the workplace. It also highlights some particular cases when employers will need to approach this more carefully.
Employers owe a general duty of care to their employees, as well as specific legal obligations to ensure their health, safety and welfare. It is critical that before employees return to the workplace, risks relating to coronavirus (COVID-19) are mitigated as far as reasonably practicable. Employers should ensure they have regard to government guidance.
The guidance requires employers to carry out a risk assessment and establish safe working practices in agreement with their employees; directly or via employee representatives, where appropriate. Larger employers are also required to publish the risk assessment on their websites. The guidelines will provide a useful framework for employers and compliance with them will assist employers in demonstrating they have discharged their duties to their employees.
Notwithstanding the steps that an employer takes employees may still feel concerned about the risks of returning to the workplace, and of course these cannot be overcome entirely. Where individuals raise concerns employers should ensure these are considered and appropriately addressed. Employers should be aware that there are additional safeguards to protect employees from being dismissed or subjected to any other detriment where the employee reasonably believes there to be serious and imminent danger in returning to work.
Staff Who Are 'Shielding'
Individuals with certain medical conditions have been identified by the Government as "clinically extremely vulnerable" and have been advised to "shield". If an individual is shielding, they should stay at home, not leaving the house at all. This guidance is currently in place until at least the end of June. The new UK Government guidance confirms that individuals who are shielding should continue to do so. This means that if you employ any clinically extremely vulnerable staff, they should not return to the workplace yet. They can of course be asked to work remotely, or potentially be furloughed (where appropriate).
There is a second category of individuals who have been identified as "clinically vulnerable". This category includes:
Individuals who fall into this category are advised to remain at home as much as possible, and to take particular care to minimise contact with others outside their households.
Where they can work remotely then ideally this category of staff should do so. If they do need to return to the workplace employers should ensure the workplace is made as safe as possible with rigorous social distancing and other measures put in place. Individual risk assessments will be needed and, depending on the circumstances, medical or occupational health advice might be necessary and ultimately the decision could be taken that the individual concerned should remain away from work. Employers should also be aware of the framework of suspension on medical grounds for pregnant employees.
Employees with Other Underlying Health Conditions
Even if employees do not have the conditions that have been specifically identified as making them vulnerable they may still have underlying health conditions that mean they are particularly concerned about the risks of the coronavirus. Where employees have long term physical or mental health conditions, these may fall within the scope of the Equality Act and so employers will have to consider whether any additional reasonable adjustments are needed to support them, and will need to ensure that any actions in relation to these members of staff are justified.
Employees Who Live with Someone Who Is Vulnerable
We are also aware of employees who are reluctant to return to work because they are concerned about the risk of contagion for someone in the family or with whom they reside, particularly where they are in one of the most vulnerable categories. The Government guidance is that these employees do not need to remain at home and can attend work, however robust social distancing measures will need to be put in place. Individuals may have protection under discrimination by association legislation and so concerns do need to be handled carefully.
As schools are only opening on a phased basis many employees will still have their own childcare responsibilities which mean they face practical difficulties in returning to the workplace.
This scenario is not covered in the Government guidance, but the Prime Minister has since confirmed that employees who are struggling with childcare cannot be compelled to return to work, and employers should adopt a "reasonable" approach to dealing with staff in this position. Employees may consider their options to make a request for flexible working, or for time off for dependents or parental leave. These rights are unpaid subject to an employer's own policies.
The DfE has just published Overview of scientific information on coronavirus (COVID-19). This mentions that there is evidence that the risk of death involving coronavirus among some ethnic groups is significantly higher. While the exact reasons for this are not currently known or understood, employers should be especially sensitive to the needs and worries of BAME members of staff and there may be Equality Act considerations.
Getting to Work and Public Transport
Although not a category involving specific legal protections, the way in which staff can get to work will increase their risk profile and perhaps their anxieties about doing so. It may be a relevant factor as to whether staff are able to walk, cycle or drive to work, or if they will need to use public transport.
There will no doubt be challenges for employers in how they manage any proposed re-opening of the workplace. Generally speaking employers will be in a strong position if they have complied as far as reasonably possible with relevant health and safety guidance and shared this with staff. It may be helpful to gather information from staff about their personal circumstances in order that these can be taken into account and particular risks identified and managed.
Notwithstanding this individuals may still have concerns about returning to the workplace and employers should be sensitive to this. We would not advocate sanctioning or dismissing staff for unauthorised absence for refusal to return to work at the current time.
Initially it may be possible to manage the workforce with those who are willing and able to return. As workplaces begin to open and more employees return to work, this situation may be more challenging and staff will need to understand that even if their preferences can be accommodated now arrangements will need to be kept under review as the situation develops.