Returning to Work on Easing of Lockdown Guidance

Returning from Furlough

1. With the Government announcing it’s road map for lifting the Coronavirus lockdown and setting out a plan for the lifting of restrictions, employers should be giving consideration to the measures they will require to put in place to allow workers to return safely to work. The decision to re-open places of work and to tell workers to return to work is one for the employer. Other than for the reasons discussed below, a worker cannot refuse to return to work. We are anticipating that many will have genuine concerns about doing so. This Guidance is intended to assist Employers in the process.

2. There will remain a number of workers who should not be required to attend the workplace including workers who can work from home, workers who are clinically extremely vulnerable to Covid-19 and workers who are required by the Public Health Guidance to self-isolate or to safeguard.

3. The Government cannot compel employers to instruct their workers to return and so many employers may choose to keep workers on furlough leave and continue to claim whatever support may be available under the Coronavirus Job Retention Scheme (CJRS), which will close on 31 October 2020.

Risk Assessments Required

4. Before telling workers to return to work an employer would have to be confident that it has complied with its obligations in terms of health and safety law and, in particular, the Health and Safety at Work, etc., Act 1974 (HSWA). In terms of the HSWA, the duty on employers is “so far as is reasonably practicable” to provide and maintain safe places of work, safe systems of work and adequate facilities for welfare. Case law is full of judicial authorities on claims brought under HSWA, but there is no case law which looks at the situation currently facing employers and workers.

5. Risk assessment will be crucial, firstly to identify the risks, secondly to remove or minimise the risks (so far as reasonably Practicable) and thirdly to counter any argument from a worker that they should not return to work. The Government has guidance on working safely (which can be found here https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19) covering eight types of working but it is important to note that the Guidance is not law. However failure to follow the Guidance would be unwise and would have to be objectively justifiable. Ultimately it is for employers to carry out their own risk assessments and to determine what steps are required to comply with health and safety law.

6. While it is stated that the Government “expects” employers with more than fifty employees to publish their risk assessments, there is no legal obligation to do so. Our advice however is that all employers, no matter their size, should carry out a risk assessment and should refresh the process on a regular basis, by engaging with their workers.

7. It is also worth noting that the First Minister of Scotland advises that employers should follow Scottish Government guidance and that the UK Government guidance is not currently “operational” in Scotland. It does however contain useful information.

8. If an employer is introducing any measure which may substantially affect the health and safety at work of employees (and returning to a social distancing workplace after furlough is likely to fall into that category), then there are requirements to consult about the proposed practices. The Safety Representatives and Safety Committees Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996 make clear that an employer must consult with the health and safety representatives selected by a recognised Trade Union or, if there isn’t a recognised Trade Union, a representative chosen by workers. An employer cannot decide who the representative will be, but can choose to consult directly with employees in the absence of a recognised Trade Union, and if that is practicable. Otherwise representatives will have to be elected.

9. The Health and Safety Executive provide useful guidance here https://www.hse.gov.uk/pubns/indg232.pdf

10. It is important to note that the HMRC Guidance says:-

“When your employers are on furlough
You cannot ask your employee to do any work that:
Makes money for your organisation or any organisation linked or associated with your organisation;
Provides services for your organisation or any organisation linked or associated with your organisation.

11. Accordingly, there is a question as to whether participating in an election, acting as an elected representative, or participating in a consultation constitutes “providing services for the organisation”.

12. Our view is that employees participating in the consultation are doing so for their own interests not as a service to the employer. It would also seem counter-intuitive to have to bring employees back from furlough to consult with them about whether the furlough period should come to an end. However, if any employee raised objections then these could be discussed in order to try and establish whether they have a reasonable basis.

13. Issues will arise concerning social distancing and the cleaning and sharing of equipment. They could also include an employee believing that a colleague is symptomatic or that by refusing to return to work an employee is protecting “others” perhaps including family members.

Refusal to Return

14. Many workers may be fearful about returning to work and the potential consequences in terms of their health Inevitably, there will be some who seek to take advantage of the situation. The Chartered Institute of Personnel and Development states that 44% of employees that they surveyed were anxious about returning to work.

15. Even if it is not expressly written into an employment contract, there is an implied term in every employment contract (whether written or oral) that a worker will obey lawful and reasonable instructions given by their employer. Such a lawful and reasonable instruction could be that the worker is required to return to work. However, it is important to note that the instruction must be lawful and so an instruction to have someone attend work if that work could still be done from home may be unlawful. Likewise an instruction to return to work when it is unsafe to do so will not be lawful.

16. Employees have protections from detriment or dismissal if they leave or refuse to attend the workplace for health and safety reasons in terms of Sections 44 and 100 of the Employment Rights Act 1996 (“ERA”). These protections apply if:-

• The employee left or refused to attend the workplace because they reasonably believed there was a serious and imminent danger that they could not reasonably avoid; or

• The employee took appropriate steps to protect themselves or others because they reasonably believed there was such danger.

17. Detriment would include with-holding pay, subjecting an employee to inappropriate disciplinary action and dismissing an employee.

18. The essence will be whether an employee’s belief was in all the circumstances reasonable. While it would be for the employee to prove that their belief was reasonable, it is likely that the concept of “danger” will be interpreted broadly. It is not necessary for an employee to prove that the serious and imminent danger actually existed. This is why proper risk assessment is key.

19. Dismissals in breach of Section 100 of the ERA are automatically unfair and employees do not need to have two years continuous service to bring a claim.

20. It is not going to be possible to insist that an employee who is shielding should return to work as Government guidance states clearly they should not leave home.

21. If an employee raises concerns about returning to work then an employer should work through all of these concerns with the employee in the hope of addressing them. They will have to carefully consider those concerns and weigh up the risks. These should be a meaningful discussion about the measures that can be put in place and these discussions should be carefully documented. In particular, the health and safety assessment should be discussed in detail.

22. Where the employer has taken all reasonable steps to address the concerns raised by the employee and where the employer’s position is supported by a robust risk assessment, then if the employee continues to refuse to return to work then it would be open to an employer to commence disciplinary proceedings in respect of a failure to follow reasonable instructions. We would how ever advise caution with this approach for the reasons set out above. It could involve a series of escalating warnings and eventual dismissal.

23. Where an employee is not able or willing to return to work (whether for a genuine reason or not) an alternative and less problematic approach would be to consider dismissing for some other substantial reason (SOSR), namely that due to the employee’s circumstances, they are not able to perform their job and are unlikely to be able to do so for the foreseeable future. This is not however an option where home working is possible. Dismissal for SOSR would reduce the risk of a claim for being subjected to a detriment .

24. The social distancing rules mean that special arrangement would be required when holding a disciplinary hearing or appeal but this can be done vie Skype, Zoom of other medium.

25. Accordingly, in the event that an employer was considering the possibility of going down the route of commencing disciplinary proceedings then specific advice should be taken prior to starting any such proceedings.

26. Employers will have to guard against disability discrimination claims from employees who have an underlying condition which has a long term and substantial adverse affect on their ability to go about day to day activities. Long term means lasting or expected to last a year. Substantial has been judicially defined as not trivial. Compelling such employees to return to the workplace will be discriminatory and is likely to result in claims.

27. Employers will have to consider reasonable adjustments for employees with a disability meeting the definition in paragraph 26 above the obvious one is to allow them to work from home. There will have to be meaningful discussions with disabled employees about reasonable adjustments, but if none can be found the employer may be left with no alternative but to dismiss for SOSR.

It would be dangerous to impose a blanket instruction to all employees to return to work as this would be a provision, criterion or practice, which would be indirectly discriminatory against any high risk employees. Accordingly, if there are people who may be more likely to suffer serious illness if they contract Covid-19 then they should be considered on a case to case basis. If such an instruction is given, and individual circumstances not taken into account, it is difficult to see how the defence of a proportionate means of achieving a legitimate aim could be maintained.

For any advice in relation to any particular aspects of the above, please contact a member of the Wright, Johnston & Mackenzie Employment Team: Martin Stephen (mss@wjm.co.uk), Liam Entwistle (lae@wjm.co.uk), Andrew Wilson (ajpw@wjm.co.uk) and John Grant (jg@wjm.co.uk).