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Returning to work post-covid – What Employers need to know

Apr 12, 2021

Author: Anthony Purvis

At the time of writing, many may be wondering just when they will return to the workplace. The end of either their furlough period or months spent working from home will eventually see employees readjusting to what used to be normal before coronavirus wreaked havoc. 

Employers, however, face a different challenge – how to ensure they manage their workforce’s return to work in an appropriate, legally compliant way.

The UK government will not be reviewing social distancing measures until June 21 at the earliest. Until then at least, the position is clear: employees are to stay at home unless it is not reasonably possible to work from there.

Employers have, as a result, had to assess what it is reasonably possible for members of the workforce to do from home. If an employer comes to the conclusion that staff have to come into the workplace to carry out their work – and instructs them to do so - they must be able to justify this decision if and when it is questioned by the authorities.

This is an area requiring careful consideration. For a start, employers who ask staff to come back into the workplace must assess how they would travel to work. They should be referring their employees to the government guidance on safe travel to work, which gives advice on using public transport. The practicalities of the situation may make it worth employers discussing changes to working times so that staff are not travelling in peak periods, when risk of infection may be high.

Employees have the right to not suffer detriment or dismissal if they refuse to come to work because they have a reasonable belief that doing so would place them in serious and imminent danger.

This particular right was introduced to cover serious health and safety situations. It was not created specifically for coronavirus. It is, as yet, unclear whether it also covers travel to and from work. But while we are yet to see the extent of this legal protection clarified in relation to Covid-19, employers need to be aware that they will be on safer ground if they do adhere to this legislation and take a thorough approach to health and safety.

If an employee gives health and safety as a reason for not working, their concerns should be assessed by their employer; with the duty of care to employees in mind. The employee should be given a documented response outlining the position taken by the employer. While disciplinary action could be brought against staff who are not vulnerable, refuse to work from the workplace and cannot work from home, we do not yet know how employment tribunals would view a dismissal in such circumstances. Placing such staff on furlough may, therefore, be a cautious compromise; not to mention a more legally-safe course of action.

Furlough should also be considered for staff who are classed as clinically vulnerable or extremely clinically vulnerable. The government advises the extremely clinically vulnerable not to go to work, while recent guidance regarding the clinically vulnerable has dropped previous advice to give such staff the safest available on-site roles. As Covid-19 is an unknown and untested quantity regarding workplace law, it may be best to have all clinically vulnerable employees – which includes pregnant women - working from home if possible or on furlough or unpaid leave. This will avoid possible allegations relating to duty of care or discrimination. There is no simple formula for managing clinically vulnerable staff members but you are obliged to assess the risks they face and do everything possible to remove those risks.

When it comes to childcare, employees can stay on furlough or keep working from home, if they can do so effectively. Alternatively, a staff member with more than a year’s continuous service can apply for unpaid parental leave; with a maximum of four weeks’ such leave for each child under 18.

With all adults scheduled to have had the first vaccine by 31 July, companies may be seeing light at the end of the tunnel. But they need to focus closely on managing the return to the workplace. This may have to be done in stages, based initially on who wants to return to work and recognising the issues we have detailed here. As with all aspects of staff management during the pandemic, it is an exercise that requires an understanding of legal obligations and people’s situations and an awareness that there is no one-size-fits-all approach.