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There’s no place like home? Some practical considerations for employers overseeing a return to the workplace

We set out some of the legal and practical considerations for employers who are planning to ask some or all of their staff to return to the…

The gradual emergence of the working population from the COVID-19 ‘lockdown’ promises to be a far more protracted and complex exercise than the imposition of lockdown back in mid-March. Employers must have regard to a myriad of legal obligations combined with a range of subjective considerations: the impact of lockdown, and the personal and practical implications of returning full or part-time to the workplace, will vary from one person to another. Set out below are some of the legal and practical considerations for employers who are planning to ask some or all of their staff to return to the workplace: as is often the case with employment issues, there may be no single ‘right’ answer to the challenges that arise.

Which staff can actually be asked to return to the workplace?

It’s worth remembering that, despite the recent change in emphasis from ‘stay at home’ to ‘stay alert’, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 continue to make it an offence for a person to go to work unless that work cannot reasonably be done from home. In addition, employers should not be asking staff to return to the workplace where either:

  • they are obliged to self-isolate under the official guidelines (e.g. because either they or a household member is showing symptoms of COVID-19); or
  • they are obliged to shield because they are personally clinically extremely vulnerable to COVID-19.

In practice, this means that employers must make reasonable efforts to understand whether one or more of these three scenarios applies to each member of staff:

  • Theoretically, it should be comparatively easy to determine which staff can reasonably continue to work from home: aside from management’s knowledge of what each job within the workplace entails, an employer should have accumulated a reasonable amount of practical experience over the last three months about how effectively people have been working from home (or not, as the case may be);
  • Where employees are having to self-isolate then this should be a comparatively short-term issue, although it will remain something of a ‘moveable feast’: staff or family members may exhibit symptoms at any time, including after their return to work;
  • Staff who are ‘clinically extremely vulnerable’ will have one or more relevant underlying conditions. In many cases management may already be well aware of these; however, this won’t always be the case and any employee who claims to be extremely clinically vulnerable must be treated sensitively, with appropriate expert medical (and other) guidance being sought where relevant.

What health & safety obligations must employers consider?

When planning a return to work, employers must carefully review their health & safety obligations (which remain unaffected by any of the Government’s return to work guidance). The key piece of legislation is the Health and Safety at Work etc. Act 1974 (HSWA), under which employers must “so far as is reasonably practicable” provide and maintain safe places of work, safe systems of work and adequate facilities for welfare. In addition, employers must provide employees with sufficient information and training. However, employers only need to take steps that are reasonably practicable. It should also be remembered that health and safety law also applies to employees, who are required to take reasonable care of their own health and safety and that of others, including cooperating with their employers so as to enable management to fulfil their health and safety obligations.

In practice, an employer will need to:

  • Undertake comprehensive risk assessments (in consultation with appropriate staff health & safety representatives);
  • Establish safe systems of work, including implementing preventative and protective measures;
  • Implement (and enforce) these systems on an ongoing basis, including preparing and communicating to all staff a written health & safety policy (which should be updated and recommunicated on a regular basis, where necessary);
  • Provide employees with information about any the risk assessment preventative measures being taken; and
  • Regularly review those measures so as to ensure that they remain fit for purpose.

In addition to the HSWA, there are a number of relevant health and safety regulations, including:

  • The Management of Health and Safety at Work Regulations 1999, which set out general rules for the arrangements which employers must implement in order to manage health and safety risks in the workplace;
  • The Workplaces (Health, Safety and Welfare) Regulations 1992, which are concerned with the physical aspects of the workplace, including cleaning, ventilation, safe distancing and providing suitable sanitary and washing facilities;
  • The Personal Protective Equipment at Work Regulations 1992, which set out rules about the provision of PPE.

(The House of Commons Briefing Paper published in mid-May also made reference to The Control of Substances Hazardous to Health Regulations 2002, which concern the spread of hazardous substances, including bacteria and viruses, within the workplace. However, and whilst Covid is a biological agent for the purposes of the Regulation, the ACoP that its behind it expressly disapplies coughs, colds, viruses as they are not risks borne out of the workplace or workplace activities).

In reality, it will be unlikely that an employer will be able to prevent exposure to COVID-19 and so, instead, it will need to control exposure. The Regulations set out a hierarchy of measures that can be taken to control exposure to hazardous substances, including:

  • Eliminating the hazardous substance;
  • Modifying the substance, process and/or workplace;
  • Applying controls to the process, such as enclosures and splashguards;
  • Working in ways that minimise exposure, such as using a safe working distance to avoid skin exposure; and
  • The provision of equipment or devices worn by exposed individuals: thus the provision of PPE should be a last resort.
  • That said, where PPE is provided then:
    • It must fit and must, so far as possible, effectively control the risk;
    • It must be maintained and replaced as necessary;
    • Employees must be given training in the use of the PPE; and
    • Employers must ensure that they do not discriminate in the provision of PPE, in particular by taking account of different body types (recognising that one size does not fit all.

In mid-May, the Government published guidance for working safely during COVID-19 which covers eight types of working: offices, factories and warehouses, shops, construction sites, laboratories, restaurants, working in homes and working from vehicles. This guidance is broadly similar, subject to some sector-related modifications, and there are some core safety principles common to all of the guidance:

  • In every workplace, increase the frequency of handwashing and surface cleaning;
  • Businesses and workplaces should make every reasonable effort to enable working from home as a first option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines;
  • Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate and, if so, take all possible mitigating actions to reduce the risk of transmission between their staff;
  • Further mitigating actions include:
  • Keeping the activity time involved as short as possible;
  • Using screens or barriers to separate people from each other;
  • Using back-to-back or side-to-side working (rather than face-to-face) whenever possible; and
  • Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others);
  • Finally, if people must work face-to-face for a sustained period with more than a small group of fixed partners, then employers will need to assess whether the activity can safely go ahead. No one is obliged to work in an unsafe work environment.

The guidance notes that those who are clinically extremely vulnerable have been advised to shield and should not be required to attend the workplace, and that those who are only clinically vulnerable do not have to shield and can attend the workplace but that they must be given the safest positions where they can maintain 2m social distancing.

All eight pieces of guidance state that PPE should be reserved for workers in the health and social care sectors, indicating that for other workers social distancing is sufficient. However, it seems likely that employers could be under a legal obligation to provide PPE in certain contexts, e.g. if the nature of an employer’s workplace is such that large numbers of people will be required to work in an enclosed space, such that only high quality PPE can adequately control the risk of infection.

It is worth remembering that the guidance is not law and that it’s ultimately for employers to undertake their own risk assessments and to determine what health and safety steps they must take. However, businesses not following the guidance will need sound, documented reasons for not doing so, otherwise the risk of employee discontent and perhaps even enforcement action by the regulator is a very real risk.

Personal considerations

What makes the return to the workplace after lockdown even more complicated is the fact that employers must have regard not only to various legal obligations but also a range of subjective issues which arise from the fact that COVID-19 and the gradual easing of lockdown will impact upon people differently. For example, an employer who wants some of its workforce to start returning to the workplace may have to deal with:

  • People who can work effectively from home and so who can legitimately object to returning to the workplace, as they would prefer to continue working from home as a matter of personal preference;
  • People who can work effectively from home and so who should not be asked to return to work, but who are keen to return as a matter of personal preference;
  • People who can work effectively from home and so who should not be asked to return to work, but who are keen to return as they have been suffering from worsening mental health and a sense of isolation during lockdown;
  • People who want to return to the workplace as they cannot work effectively from home and are worried about job security, but who are personally clinically extremely vulnerable and so should not yet return to work;
  • People who cannot work effectively from home and so need to return to the workplace, but who are worried about the potential risk to a member of their household who is clinically extremely vulnerable;
  • People who cannot work effectively from home and so need to return to work, but who remain genuinely very anxious about doing so even though they are not clinically vulnerable; and
  • People who cannot work effectively from home but who want to continue doing so for child care reasons.

(Feel free to think up your own permutations!)

Practical measures

So what can employers do to meet their business requirements whilst seeking to accommodate the reasonable needs of their staff?

  1. Review the data/other evidence arising from the first three months of lockdown and identify…
  • Those staff who can continue to work effectively from home full time;
  • Those staff who might be able to work effectively from home part-time and attend the workplace part-time;
  • Those staff who need to attend the workplace full time;
  1. Ask HR to review staff personnel records to identify any people who might have a reason to be regarded as either clinically extremely vulnerable (and who should not therefore be asked to return to the workplace) or clinically vulnerable to COVID-19 (and for whom additional protective measures might be required if they are to be asked to attend the workplace full or part-time);  
  2. Based upon the research at 1. and 2., draw up a provisional list of those people who are to be asked to continue working from home full time, attend at the workplace full time, or mix home and office working;
  3. Complete all relevant health and safety assessments and put in place all consequential workplace measures, in consultation with staff representatives;
  4. Write to each member of staff in order to explain:
  • The business/commercial reasons why it’s necessary for some/all staff to be asked to return to the workplace full or part-time;
  • The outcome of the health & safety risk assessment and the consequential measures that have been put in place;
  • That they are on the provisional list of those who are to be asked to continue working from home full time/ attend at the workplace full time/ mix home and office working;

    Each person should then be asked whether they are agreeable to what is proposed or, if not, to explain what their concerns are so that these may be considered. Now is the time to understand what’s going on with your employees beyond work; how are they coping?  Do they have childcare or elder responsibilities?  What challenges do they have?  Should you be discussing any adjustments to their role, days or hours of work to assist? Organisations should be considerate in all workforce engagement and communication. Involving staff in decisions; having regular contact; requesting insight and ideas; and utilising tools such as surveys will help foster positive engagement and allow businesses to gain insight into how staff feel about returning to work, generate new ideas for ways of working and help formalise a plan going forward.
  1. Management should thereafter work through any concerns raised, with a view to resolving people’s reasonable anxieties wherever possible. It would make sense for management to think ahead about what concerns are likely to be raised and how these will be responded to.

How will you deal with employees who do not want to return to work?

Employees may be reluctant to return to work for a wide variety of reasons, many of which are likely to be genuine and some of which may be supported by various legal protections, as explained below. In other cases, however, employees may have no good reason for refusing to return to work.

Refusing to attend work for health and safety reasons

It is an implied term in every employment contract that the employee will obey lawful and reasonable instructions given by their employer. However:

  • It remains a criminal offence for a person to leave their house to attend work if that work can be done from home (as explained previously). In these circumstances, an instruction to attend the workplace may be unlawful;
  • In addition, employees have certain protections when they refuse to attend the workplace because of a reasonable fear of serious and imminent danger.

Sections 44 and 100 of the Employment Rights Act 1996 protect employees from being subjected to a detriment or from being dismissed if they leave or refuse to attend the workplace for health and safety reasons. The protection under sections 44 and 100 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 (which could include family members back at home) because they reasonably* believed there was such danger**.

*(The fact that an employer disagrees with this assessment does not matter. However, it is for the employee to prove, on the facts, that their belief was reasonable).

**(What constitutes a serious and imminent danger will differ from one employee to another. For example, employees who are clinically vulnerable or who have family who are clinically vulnerable may be in a different position from employees who are less at risk from COVID-19. In addition, ‘danger’ can arise from another employee, which could be relevant if an employee believes that a colleague is symptomatic).

It is unclear whether the protection covers danger arising from a commute or whether it is limited to dangers in the workplace.

In light of the above protection, the Government guidance comments that employers may need to find solutions on an ad hoc basis, such as putting workers on furlough. Note however that, after 1 July 2020, an employee can only be furloughed if they have already served a full three-week period of furlough prior to 30 June 2020 (with the exception of employees returning from statutory parental leave).

Equality legislation

As the clinically vulnerable include the over-70s, people with underlying health conditions, certain BAME groups and pregnant women, employers will also need to ensure that they comply with equality legislation, particularly as it relates to the protected characteristics of age, disability and pregnancy. The guidance also highlights the specific health and safety obligations owed to new and expectant mothers.

Employees with caring responsibilities

Employees do not have a statutory right to refuse to attend work because they have childcare responsibilities. Employees do have a right to a reasonable amount of time off for dependants but this is unpaid. That said, as parental responsibilities fall disproportionately on women, an employer could face a claim of indirect discrimination if its policy had a negative impact on those with caring responsibilities.

Mental health and wellbeing

Some employees may have suffered with mental health issues prior to lockdown.  The many consequences of COVID-19 may have triggered and/or exacerbated such conditions and employers should be liaising with staff to understand how they are coping and where they are in their thought process of returning to work. Reasonable adjustments - to an employees’ work pattern, role and responsibilities for example - may need to be made to facilitate a return to work. 

Additionally, some staff may have developed mental health issues (depression, stress and anxiety for example) as a direct or indirect result of COVID-19.  Employers should be looking to address any concerns and where possible, implement adjustments that may be required to facilitate a return to work.  Employees who have been furloughed, working in isolation at home or in the workplace may have genuine anxieties about working with others around them again, notwithstanding any socially distanced measures implemented.  Therefore, it is crucial for employers to effectively communicate with staff about any risks assessments carried out and measures implemented to help alleviate any concerns. 

“It’s not enough”

Despite the concerted efforts of many businesses to ensure a safe return to work, there may be some employees who may simply refuse to return – so what options do employers have when they consider an employee’s refusal to return to work is unreasonable or disingenuous?  Put simply – tread carefully.  Employers will need to deal with such matters on a case by case basis and ensure that they have carried out a thorough risk assessment and implemented the measures required. 

Dismissing or subjecting an employee to any detriment (e.g. refusing to pay them) as a consequence of refusing to return to work could lead to employment tribunal claims being raised and if an employer’s health and safety process falls short of what is reasonably practicable then this increases the employee’s chances of succeeding in a claim.

Going forward

Let’s remember, the health and safety obligations (legal or otherwise) to be met by employers remains relatively unchanged.  Yes, there is particular focus on COVID-related health and safety measures, policies and procedures to be implemented but the real issue here is effective communication and confidence. Without that, employees are unlikely to return to work. 

Employers must be cautious and recognise that, as well as ensuring their physical health and safety, the mental wellbeing of their employees is paramount. Many organisations are now questioning their ways of working and how they can successfully create a more adaptive, innovative and resilient workforce. Getting this right is critical to not only the viability of any business going forward but also the health and continued support of its people. 

Mark Landon and Ingrid McGhee are partners in the Employment, Pensions and Immigration team. If you have any questions, please do not hesitate to contact Mark at mark.landon@weightmans.com or Ingrid at ingrid.mcghee@weightmans.com. 

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