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‘Employees must play their part in social distancing and safeguarding’

As businesses return to the workplace following encouragement from the Government, employment law and health and safety experts warn that employees must play their part in adhering to occupational safety measures to ensure, so far as possible, a safe return to work.

Government guidance continues to be that if employees can work from home that they should continue to do so. However, if given the nature of the business and an employee’s job role, it is not possible for them to work from home, then employers will need to implement various measures to ensure workplace compliance and a safe system of work.

To this end businesses should carry out risk assessments before welcoming back employees, as well as putting in place measures such as reconfiguring the workplace, sourcing equipment to comply with distancing measures and changing working patterns. The Government has placed more responsibility in the hands of employers to follow and uphold the new guidelines, explains experts at Slater Heelis.

Sarah Calderwood, Partner in the Employment Law Team at Slater Heelis, said: “Guidance has been developed to safeguard everyone as we try to resume normal working life, so far as possible. However, employees who do not comply could put their clients, colleagues, friends, families and their own lives at risk. One-way routes and the restriction of the use of enclosed and communal spaces as well as staff rotations are in place for a reason, and workers with a relaxed attitude to safety measures could put others at harm.

“The risk to businesses of having to close their place of work following an outbreak, and part of their workforce being out of action due to illness or because they have to self-isolate under the new track and trace regime, could be catastrophic. Therefore, businesses should do all that is reasonably practicable to educate and inform employees about the new safety measures, while stressing the importance of mitigating the transmission risk.

“An employee could also potentially be subject to disciplinary action for failure to follow reasonable management instructions if they do not follow properly implemented safety requirements in the workplace. However, the situation should be carefully considered before any such disciplinary action is taken and it is strongly recommended that legal advice is obtained before employers take any such action. This is particularly given that employers should be mindful that in some circumstances, dismissals relating to the raising of health and safety concerns could amount to automatically unfair dismissals in respect of which compensation is uncapped.”

Antony Eckersley, Chartered Health & Safety Consultant at TSE Solutions, added: “Businesses are obliged to complete health and safety risk assessments and display certificates. Their employees are obliged to follow them, too. Safeguarding is voided if measures are not followed by everyone in the workplace. Extra sanitisation, distancing measures and staggered attendance timetables can been put in place to mitigate the danger, however they are ineffective unless each member of staff complies.

“Employers should conduct and regularly update a COVID-19 risk assessment. The assessment should be made available to employees and if the business has more than 50 employees, the assessment should also be displayed on the company website. Employers should also display the ‘Staying COVID-19 Secure in 2020’ poster prominently such as in a reception or communal area.

“The Health and Safety Executive (HSE) inspections will also increase in frequency as more businesses open their doors, with increased inspections and investigations to make sure that workplaces comply and are COVID-secure. What’s more, a business that meets and exceeds these measures will increase confidence in its employees and reassure them that returning is safe. Businesses that fail to meet the requirements may face closure and prosecution.”

Should employees continue to work from home?
Employers that ask employees to continue working from home are not free of obligation. As explained, Government advice states that if staff can work from home, they should continue to do so. However, employers should also consider providing the necessary ergonomic equipment for working long hours at home, where staff may be working from their dining room tables or makeshift offices.

The latest Government guidance puts the decision as to whether it is necessary to require staff to return to work in the hands of employers, but no matter how many people are returning to the workplace, robust safeguards must be put in place.

Can an employee refuse to return to the office?
Unsurprisingly, there will be a number of concerned employees that are reluctant to return to the workplace following furlough or lockdown, especially if they are classed as medically vulnerable or are living in a household with vulnerable people. If the employee can work from home, this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to require them to return to the workplace. If there is no potential discrimination, and the public health advice is such that the employee could reasonably be asked to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence. However, businesses should seek advice before doing so, in order to make sure they comply with employment laws.

A business implementing health and safety requirements could require public facing employees, including receptionists and retail workers, to wear face coverings or visors when carrying out their job. Specific objections from employees will need to be considered on a case by case basis.

Health and safety concerns and whistleblowing
Employers should also be aware that employees have the right not to be dismissed or treated detrimentally (such as taking action short of dismissal) in certain circumstances where they raise health and safety concerns about the workplace. Further, employees may qualify for whistleblower protection where they report suspected breaches of health and safety legislation to their employer and are dismissed or subjected to a detriment as a result.  If the criteria for such automatic unfair dismissal claims is met, there is no qualifying service requirement and compensation for successful claims is uncapped. Therefore, employers should take into account this potential risk exposure and take advice before taking action in relation to employees.

Slater Heelis is a full service firm offering legal guidance on a broad range of matters affected by the COVID-19 pandemic. The firm continues to operate through the pandemic, and its offices are open. Appointments with solicitors can be conducted digitally or by pre-booked appointment only. To contact Slater Heelis about any legal matters, please call 0161 969 3131 or visit us via our website