The Government says that now is the right time to go back to work. Amid concerns that the Coronavirus/COVID-19 pandemic and subsequent lockdown has turned our city centres into ‘ghost towns’, businesses are being encouraged to reopen their offices and bring their employees back to a centralised workspace.
For employees across the country, this has not been welcome news. A recent survey showed that 9 in 10 workers who worked from home during lockdown want to continue. For many, the COVID-19 crisis has provided a bitter-sweet opportunity to appreciate the benefits of working remotely full-time, such as a shorter commute, childcare being easier to manage, more time to spend with family, and more energy to focus on exercise, hobbies and healthy eating. It has even been reported that 4 in 10 home movers are now considering moving from urban areas to the countryside to take advantage of their new flexible lifestyle.
The ongoing threat of COVID-19 is also a major issue for employees, particularly those who are at risk or live with someone who is at risk. Recent surges of the virus mean that we must still take extreme caution in our day-to-day lives and issues such as crowded public transport, cramped office spaces and shared common areas will make returning to the office safely challenging for many businesses.
Despite these issues, the Government is pushing ahead with its return to work campaign and many businesses – especially those that struggled to adapt their workforce to homeworking – are already making plans to bring their employees back.
So, if your employer is asking you to return to the office, do you have any rights under employment and health & safety law to refuse?
What are my employer’s responsibilities for keeping me safe at work?
Under the Government guidance on how to make your workplace COVID-secure, your employer must implement five practical steps to ensure the workplace is safe:
1.Carry out a COVID-19 risk assessment
Employers must carry out an assessment in line with health and safety law. The Health and Safety Executive has published specific guidance for handling a COVID-19 risk assessment, such as:
- Identifying what types of work activity could spread the virus
- Identify the likelihood of someone being exposed to the virus
- Taking steps to remove workplace activities or situations that could put employees at risk or (if not possible) controlling to risk
- Taking further steps to support vulnerable workers
2.Implement cleaning, hygiene and handwashing procedures
- Regularly clean and disinfect the office and other areas such as washrooms
- Enhance or increase the frequency of cleaning for busy areas of the office
- Provide hand sanitiser
- Set clear guidance for cleaning and maintaining hygiene
- Provide hand drying facilities, such as paper towels and electric dryers
3.Help employees work from home wherever possible
Employers should take steps to support homeworking where necessary, such as:
- Providing equipment, such as remote access to work systems
- Including remote employees in company communications
- Monitoring and supporting employees’ physical and mental health
4.Maintain two metre social distancing wherever possible
For example, by:
- Putting up signs to remind employees
- Implementing one way systems
- Receiving customers, clients and other visitors by appointment only
5.Manage transmission risk
Where social distancing is not possible, employers should take other steps such as:
- Stopping non-necessary activities such as company-wide meetings in enclosed spaces
- Using barriers to separate people
- Implementing back-to-back or side-to-side working rather than face-to-face
- Staggering shift times to reduce the number of employees in the office
- Implementing office bubbles within which only certain employees can come into contact
Can my employer force me to go back to work?
The short answer is yes, if your employment contract allows it, your employer can ask you to return to the office. Therefore, if you want to continue working remotely for lifestyle reasons alone, you may not have any rights to refuse your employer’s reasonable requests.
However, it is also implied in every employment contract that your employer has a duty of care to keep you safe in the workplace. Under employment law, employers have strict responsibilities to implement health and safety measures and to treat their employees fairly. This includes carrying out a rigorous COVID-19 risk assessment and, depending on the circumstances, supporting employees who cannot or do not want to return to the office because of COVID-19.
If you do not want to return to the office, the first thing to do is to raise your concerns with your employer; you may be able sort out alternative arrangements or address the issues that make it challenging for you to return, such as:
- Changing your work hours to avoid travelling at peak times
- Letting you have access to a parking space so you can avoid public transport
- Discussing flexible work arrangements and any additional equipment/support you need to work from home as productively as possible
- Going on furlough leave
If you are unable to come to an arrangement, you could request to take annual leave or unpaid leave. However, your employer does not have to agree to this.
Can my employer tell me to work if I am at high risk?
It is estimated that around 2.2 million people in England are at ‘moderate risk’ or ‘high risk’ of COVID-19.
If you fall into one of these groups, your employer must be particularly careful and take extra steps to keep you safe. Should your employer fail in their responsibilities, you may be entitled to refuse to work if your health is in ‘serious and imminent’ danger.
Some at risk people may also be protected under equality laws, including:
- Pregnant people
- People aged 70 or over
- People with serious health conditions that are classed as disabilities
If your employer does not make reasonable adjustments to support you at work or they treat you unfairly due to a protected characteristic, this may be discrimination and you could take legal action. Making reasonable adjustments could include placing you on furlough leave, supporting flexible working hours or making other arrangements depending on your individual needs.
Can my employer ask me to work if I test positive for COVID-19?
If you test positive for COVID-19, get symptoms or come into contact with someone with COVID-19, the Government rule is to stay at home for 10-14 days and your employer cannot force you to come to work.
During this time, your employer should pay you sick pay in line with your employment contract or you can receive statutory sick pay from the first day you become ill (so long as the period of illness lasts at least four days).
What if my children cannot go to school or I cannot arrange childcare?
If you need to take care of your children, you are entitled to unpaid dependant leave. The amount of leave you can get will depend on what is reasonable in your individual circumstances. Your employer cannot refuse your request if it is reasonable or treat you unfairly for needing to take time off (including dismissing you or making you redundant for this reason).
Can my employer fire me for refusing to come to work?
If you take unauthorised leave, your employer could start disciplinary action and dismiss you. However, they must use a fair process and have a fair reason. If you believe that you have been treated unfairly during the process and are unable to resolve the issue with your employer, you may be entitled to make an Employment Tribunal claim for unfair dismissal.
Under employment law, employees can refuse to go to work if there is ‘serious and imminent’ danger to their health. Dismissing an employee because they do not want to work in a dangerous environment or have blown the whistle on unsafe/illegal practices can be considered automatically unfair.
If you are dismissed for a discriminatory reason, this may be an unfair dismissal depending on the circumstances. For example, if you have a serious health condition that is classed as a disability and your employer makes no effort to make reasonable adjustments before dismissing you. You must have worked for your employer for at least two years to make this type of claim. You can also make a separate claim for discrimination no matter how long you have worked for your employer.
What if I have no option but to resign?
If you feel forced to resign from your job because your workplace is unsafe, this could arise to constructive dismissal. You must have worked for your employer for at least two continuous years to be entitled to make this type of legal claim.
I am on furlough leave. Can my employer make me work anyway?
If you are on furlough leave you are not allowed to do any work for your employer. If they are asking you to return to work anyway or ‘volunteer’ for the company, this is fraud and you can anonymously report your employer to HMRC. They will likely have to return any fraudulent furlough payments and could be fined; however, this will not affect your entitlement to your pay.
How do I report my employer for failing to keep me safe at work?
Your first step should be to raise your concerns with your employer. If they do not address your concerns, you can contact the Health and Safety Executive or the Health and Safety team of your local authority to report them. They may take enforcement action if they think your employer is failing in their responsibilities.
Your employer cannot fire you because you ‘blew the whistle’ on their health and safety issues – this is automatic unfair dismissal. They also cannot victimise you by treating you unfairly at work for making a complaint.
You should also speak to a specialist employment lawyer as you may be able to make a legal claim. For example, if your employer’s failure to address health and safety is discriminatory against you or you are forced to resign because the work environment is dangerous.
Do you need advice about an employment related issue?
At Gepp Solicitors, we have a specialist team of employment law solicitors who can provide advice to employees who are concerned about going back to work during the COVID-19 pandemic.
Our expertise covers all areas of employment law, including contentious matters involving dismissals, discrimination, whistle blowing and bullying in the workplace. Our team includes members of the Employment Lawyers Association for their experience and dedication to achieving positive outcomes for clients across Essex and the wider area.