Employers’ Considerations for the Return to Work (Part 2 of 2)

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As businesses prepare to reopen and employees are encouraged to return to work, Richard Gvero shares some more employers’ considerations from an employment law perspective including: employees who need to self isolate, employees who refuse to return to work, health and safety claims and equality issues.

Self isolating

The government is in the process of rolling out the new scheme, test and trace, designed to identify those who have been in contact with an infected person and having them self-isolate for 14 days. This means that healthy employees may be instructed to stay away from work for two weeks.

Absence as a result of this instruction will count as a period of incapacity for work for the purposes of Statutory Sick Pay. However there is nothing to stop them from continuing to work if that can be done from home. If the employee really does need to come to the workplace to work then the employer will simply have to treat the two weeks of isolation as a period of sickness absence. As well as SSP of £95.85 the employee will also be entitled to any contractual sick pay that is payable.

An employer’s absence management procedures are generally designed to encourage employees to attend work and penalise those who do not – or at least encourage them to improve their attendance. An employee who has been instructed to isolate as part of the test and trace regime however is not in a position to make a choice about whether he or she is able to attend work. Indeed it is very important that they do not come to work. A reasonable employer will therefore want to make allowances for any period of forced isolation when making an assessment of the employee’s overall attendance. Absence on these grounds should not be relied upon to trigger warnings or other measures such as exclusion from bonus schemes that may otherwise be provided for in the absence management procedure. Dismissing an employee who has been instructed to self-isolate under this system would almost certainly be held to be unfair.

Indeed it is possible that any action taken against an employee in these circumstances would trigger the health and safety rights discussed above. An employee who takes steps to protect others from danger is protected in the same way as an employee seeking to protect themselves. It is certainly arguable that an employee who stays away from work because they have been instructed to self-isolate under the Government’s test and trace scheme or because they believe that they may be infected with coronavirus could argue that their absence falls into this category.

Employees who refuse to return to work

One concern that many employers have is how to deal with employees who refuse to return to work when requested. Can this be treated as misconduct? Employers should tread carefully.

The first thing to be sure of is that everything possible has been done to make the workplace safe and that this has been communicated to employees. Employees should be encouraged to raise any remaining concerns that they have so that these can be addressed individually. If the employer has not carried out a risk assessment and taken the steps described above to make the workplace safe then asking employees to return to work is unlikely to be a reasonable instruction. Withholding pay in these circumstances may be a breach of contract and any dismissal is likely to be unfair.

If a furloughed employee is unwilling to return and has a legitimate concern, such as an underlying risk factor, then the employer should try to find a solution. Could the work be re-arranged so that additional social distancing measures should apply to that employee? Is it really impossible for the employee’s work to be done at home. The employer could even consider simply continuing the furlough period in the hope that the level of infection will fall sufficiently to allay the employee’s fears. Another alternative is to accept that the employee is incapable of work in the current conditions and place them on sick leave.

If the employer does not believe that the employee has genuine concerns about their safety then there may be no alternative but to treat their refusal to return to work as misconduct. This will mean not paying them for their period of absence and may result in them being dismissed. The key risk here is that the employee claims the protection of the health and safety rights set out in the Employment Rights Act 1996.

Health and safety claims

Employees have a right to protect themselves in circumstances of danger that they reasonably consider to be serious and imminent. Dismissing an employee in these circumstances will be automatically unfair. There is no qualifying period and no cap on the amount of compensation that can be awarded. Employees who are subjected to a detriment on these grounds – such as disciplinary action – may also bring a claim.

Could an employee who refuses to return to work because of the risk of coronavirus claim the protection of these provisions? While every case will depend on the individual circumstances, there are substantial obstacles that an employee would have to overcome. In the first place there must be actual danger. Coronavirus is of course a serious danger to public health, but does that really mean that each individual workplace is in ‘circumstances of danger’ even if there is no evidence that any of the employees are likely to be infected? Even if the Tribunal does accept that coming to work would have involved some danger, that is not enough to trigger these health and safety rights. The employee must also reasonably believe that any danger was ‘serious and imminent’. Importantly it is the employee’s belief that matters – provided it is reasonable – rather than any assessment of the danger carried out by the employer. A Tribunal might hold that an employee’s belief that the danger was serious and imminent was a reasonable one even if it concluded that it was misplaced.

Clearly a crucial question here is whether the employer has taken all reasonable steps to prevent the transmission of coronavirus in the workplace. If it has not, then that would give the Tribunal strong reasons for upholding the employee’s right to refuse to come back to work. But if it is clear that the employer has done all that could be expected – and the employee has no additional vulnerability that would exacerbate any risk to their health – then it is unlikely that that the Tribunal would find that there were circumstances of danger that the employee reasonably believed to be serious and imminent. These provisions were developed to deal with emergency situations that arise in the workplace. They do not give every employee a right to refuse to come to work because they are worried about a background risk of infection that would exist whenever they left home.

This is likely to be a hotly contested area in the aftermath of the coronavirus crisis and so a cautious approach is advisable. Employers should listen carefully to any concerns that employees raise about the prospect of returning to work and only take disciplinary action when they are satisfied that there are no proper grounds for those concerns.

Equality Issues

The risks of Covid-19 do not fall equally. Different age groups and those with various underlying conditions are more at risk from the disease. There is also some evidence that different ethnic groups may also be impacted differently. A requirement to return to work – especially when full social distancing in not practicable – therefore has the potential to amount to indirect discrimination, disability discrimination or to trigger the duty to make reasonable adjustments. The best way for an employer to protect itself from such claims is to be scrupulous in following government guidance on creating a covid-secure workplace but also to listen to any individual concerns that employees have and take additional measures when necessary.

There is a particular issue with the protected characteristic of pregnancy and maternity. The employer’s risk assessment must take into account the additional risks that coronavirus presents to pregnant employees. While pregnant women are classified as a vulnerable group in relation to coronavirus, pregnancy has never in itself been a ground for shielding or self-isolating. In most cases there should be nothing preventing a pregnant employee from working provided government guidance is being followed in relation to making the workplace covid-secure. In those rare cases where there is a risk to either to the employee or her unborn child that means that the employee cannot work, then that triggers an obligation either to find suitable alternative work or to suspend the employee on full pay. Pregnant employees should not be placed on sick leave if the workplace cannot be made sufficiently safe for them.

One of the practical difficulties that employees may face in being asked to return to work is that their children are still not being provided with a place in school. While there is no right to paid leave to look after a child, employers should try to work with employees in this situation in order to try to find a solution. This may involve a working from home arrangement or a change in duties or place of work that allows the employee to accommodate their childcare needs. While parental status is not in itself a protected characteristic, employers should be alert to the fact that women are more likely to placed in difficulties as a result of children not being able to attend school. A rigid and unsympathetic approach to the issue therefore creates a risk of indirect discrimination.

Read the first part of this article here:

Employers’ Considerations for the Return to Work (Part 1 of 2)

If you need employment advice for your business, contact Richard Gvero.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.