Return to work: employers’ questions answered

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Can our office reopen yet? Do we have to provide staff with PPE? Many concerns about the return to work still remain. Joanne Moseley from law firm Irwin Mitchell rounds up some of the most frequently asked questions and explains what the current guidance says employers should do.

On Sunday evening the Prime Minister “actively encouraged” those people who couldn’t work from home to return to work if their workplace was allowed to open. The following day, the government published eight documents available under the Working safely during coronavirus (Covid-19) guidance which applied to eight different sectors in England. It has since published safer travel guidance for passengers.

Some businesses are allowed to open for the first time today since the lockdown was imposed on 23 March. Others have remained open and have already adapted their workplaces to ensure that staff can work safely.

This list answers some of the most frequently asked questions about getting staff back to work.

Can we ask staff to return to work if they can work from home?

Not unless it’s essential and it’s safe for them to do so. The guidance states that workers should continue to work from home if they can and their employers should take ‘reasonable steps’ to help them do this.

Which businesses can re-open?

Some businesses were allowed to remain open during the lockdown. The government has extended these and they now include estate agents, garden centres and those providing cleaning services in private homes. The government has published a list of those that must remain closed which includes information about businesses that can continue to trade.

What steps do we have to take to make sure we are “Covid Secure”?

All employers must take all reasonable steps to ensure that their staff work in a safe environment. If risks are identified, you must take steps to reduce these to the lowest practicable level.

Before re-opening, you must carry out a Covid-19 risk assessment. General guidance produced by the HSE states that you must:

  • identify what work activity or situations might cause transmission of the virus
  • think about who could be at risk
  • decide how likely it is that someone could be exposed
  • act to remove the activity or situation, or if this isn’t possible, control the risk.

Each of these steps must be carefully considered and documented. You should also follow any relevant recommendations set out in sector specific guidance produced by the government and any other relevant approved trade/sector guidance.

The basic rules are that if you can maintain social distancing you should do so, but if that’s not possible, you can only re-open if you put in place suitable measures to control the risk of transmission. This might include putting barriers in shared spaces and creating shift patterns so the same workers work together. If your business uses shared spaces, you’ll need to work with the landlord and other tenants to identify and then minimise risk.

Once your assessment is complete, you should publish it on your website unless you employ fewer than five people.

Do we have to agree our risk assessment with a union or employee representatives?

There are two sets of general regulations that may apply. These are designed to enable you to:

  • develop, maintain and promote measures that ensure health and safety at work and
  • check how effective these are.

If you recognise a union and you’ve agreed to collectively consult a union H&S representative you must discuss your proposals to make your workplace safe for staff to return to. If you don’t then you need to consult with your employees directly as individuals or through workforce elected H&S representatives.

Consultation involves giving information and taking into account what they say before making any health and safety decisions. The law doesn’t state when you must consult, or for how long, but it does say it should be ‘in good time’. In practice, this means you have to allow time for your employees to consider the issues and provide them with informed responses.

If you can maintain social distancing you should do so, but if that’s not possible, you can only re-open if you put in place suitable measures to control the risk of transmission.”

Consultation does not remove your right to manage and you are responsible for making the final decision. However, if you recognise a union and they don’t agree that it’s safe for workers to return to work, they can ballot their members and take strike action if sufficient numbers vote in favour.

If you do not comply with the regulations, you will be committing an offence. Health and safety inspectors (from the Health & Safety Executive (HSE) and local authorities) may enforce the regulations where there is no evidence of consultation.

Do we have to provide PPE?

The government has said that employers shouldn’t provide personal protective equipment (PPE) as a precautionary measure against Covid-19 and that it’s only necessary if you usually supply it to your staff, or they work in clinical settings, like a hospital. It argues that social distancing, providing proper facilities for hand washing, regular cleaning and managing staff to minimise contact are much better to ways of controlling the infection risk.

However, your risk assessment should determine whether PPE is necessary, and if it is, what type/grade you need. If you do provide PPE you can’t charge staff for it and it must fit them.

Do health and safety risk assessments cover travel to work?

The HSE guidance on this is limited and simply says employers should think about: “Identifying where people can travel alone in their own transport (or walk, or cycle if it is safe to do so) when getting to and from work to maintain social distancing … staggering arrival and departure times so people can keep to the 2 m social distancing rules by not using entry/exit points at the same time; providing hand washing facilities (running water, soap and paper towels) at entry/exit points. People should be able to wash their hands when they get to work and leave. If this is not possible, provide hand sanitiser.”

Our view is that you should do more than this. Anyone who can’t walk, cycle or drive to work is likely to need to use public transport – and if this is overcrowded, it will increase the risk that staff will become infected and, in turn, possibly infect other members of staff.

The government has published safer travel guidance for passengers which asks users to  ‘consider all other forms of transport before using public transport’. Where there’s no alternative people are advised to maintain social distancing (and wait for another service is their bus/train is already full), travel off peak, wear a face covering and avoid eating and drinking whilst travelling.

Can staff refuse to return to work?

Potentially, yes if their workplace poses a serious and imminent threat to their health. Under sections 44 and 100 of the Employment Rights Act 1996, employees (and possibly the wider group of workers) are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace.

If you recognise a union and you’ve agreed to collectively consult a union H&S representative you must discuss your proposals to make your workplace safe for staff to return to.”

To be protected, the employee must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others – including members of the public and their own families.

Covid-19 is a potentially deadly disease and it’s possible that some employees will argue that the risk of coronavirus will always be ‘imminent’ whilst the pandemic persists whenever they leave their homes – a view boosted by the “alternative SAGE” group which, this week, argued that easing lockdown restrictions without having a rigorous testing and tracing regime in place was “dangerous” and risked a “rapid return of local epidemics resulting in more deaths and potential further partial or national lockdowns”.

Anyone who is living with someone who is shielding or is vulnerable may be genuinely concerned that returning to work may put members of their household at serious risk of danger.

You may disagree with your employee’s assessment of the situation. However, if the employee has a reasonable belief, they will still qualify for protection. Therefore the more you can do to communicate with staff about measures you are taking and, to reassure them of the precautions in place, the better. Talk to anyone who has concerns about returning and, if these are valid, make adjustments where you can.

Note: any member of staff with depression/mental health issues may feel particularly anxious about returning to work. If they have a disability, you will need to consider reasonable adjustments to help them continue to work, which may include allowing them to work from home or giving them the safest possible job role.

Can we ask pregnant women and others in the clinically vulnerable group to return to work if they can’t work from home?

The government differentiates between those people who are clinically ‘extremely vulnerable’ who are required to continue to shield (and can only work if they can do so from home) and those who are clinically vulnerable. The latter group include pregnant women, people aged 70 and older and those with underlying health conditions. It doesn’t yet include BAME groups who are also thought to be at higher risk.

The reality is, until working parents can utilise the childcare arrangements available to them pre-lockdown, they won’t be able to return to work.”

Anyone who is vulnerable is advised to “stay at home as much as possible and, if [they] do go out, take particular care to minimise contact with others outside [their] household.”

Recent government guidance says that if this group can’t work from home “they should be offered the option of the safest [possible job] available on site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, you should carefully assess whether this involves an acceptable level of risk.”  If you can’t minimise the risk to the lowest possible level, you will need to consider other options such as furloughing them.

Most people in this group will be ‘disabled’ under the Equality Act 2010 (except those who are simply pregnant and those aged 70 without underlying medical conditions), therefore your duty to make reasonable adjustments will also be triggered.

Pregnant women have additional rights and if you can’t alleviate the risks to them by altering their working conditions, or finding another suitable job, you must suspend them on full pay.

What about those people who can’t return to work because schools/nurseries haven’t opened?

The government has been extremely vague about this but says it expects employers to be “reasonable”.

The reality is, until working parents can utilise the childcare arrangements available to them pre-lockdown, they won’t be able to return to work. There’s little point in insisting someone returns to work if they can’t and if you do this you’ll undermine the implied duty of trust of confidence between you and your staff and they may, resign and claim constructive unfair dismissal. They may also be able to bring a discrimination claim against you.

Instead, you should talk to them about options available to them which might include furloughing them or allowing them to take unpaid parental leave.

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Joanne Moseley

About Joanne Moseley

Joanne Moseley is a senior associate at law firm Irwin Mitchell.
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