Despite companies taking initial steps towards re-opening offices after lockdown, many staff are reluctant to return, not least if it involves using public transport. Companies need to consider health and safety and employment issues on re-opening offices and this update covers the key issues.
Can employers force their employees to return to the office?
In theory, yes. Employers have the right to require employees to attend for work. In practice, these are not normal times and other considerations apply which employers should take into account. In particular, employers have a legal obligation to provide a safe working environment. This now includes preventing risk of infection and spreading the virus.
Before 1 August official government advice was, “work from home if you can”. Recent government statements ie “return to work if you can to support the economy” have now superseded this and from 1 August, employers have the right to require employees to return to work but only if the workplace is COVID secure.
What steps do employers have to take to ensure a safe working environment?
The government has published detailed guidance on returning to work focusing on eight different sectors, including offices (see below). However, “working from home remains an option to keep people safe”.
All companies with staff returning to work must carry out a COVID Risk Assessment, and should consult with staff or unions. Everyone must understand what is required of them and be able to put forward suggestions. Companies with 50+ staff should publish their risk assessment on their website.
The main requirement is to maintain two metre distances. This may mean reconfiguring the office to allow as much space as possible. If this is not possible, then one metre is acceptable but with risk mitigations which must be included in the risk assessment.
Social distancing measures include staggering start times or shift patterns. Also, having one-way walk throughs and to open more exits and entrances to avoid people coming into close contact with each other. If spacing is not possible then barriers should be put up in shared spaces and individuals © Grower Freeman 2020 should face away from each other. Also reinforce cleaning, particularly door handles, computer screens, work surfaces and other high contact objects. There should be hand sanitizers at entry and exit points. Face masks are generally not required for offices if they can maintain social distancing although some staff may prefer to wear them.
What if employees object to using transport?
Even if the office space can be made safe, the main concern for many employees is public transport where it is impossible to control the number of people at any one time and wearing face masks may not be adequate. Government advice is “walk or cycle if you can rather than use public transport”.
To get round transport issues, the government has again suggested staggering start times and for employers to provide parking facilities where appropriate.
Do some employees have more protection?
Any employee with underlying medical conditions who were told by the NHS to self-isolate for 12 weeks during the lockdown would be considered vulnerable. They may also be considered as disabled under the Equality Act 2010 so if they are forced to return to work, the employer could be liable for disability discrimination. Government advice states that vulnerable and/or disabled employees can attend their workplace if it is COVID secure but should carry on working from home wherever possible, particularly if there is no alternative to public transport.
Employees who are shielding or self-isolating under the track and trace scheme should also work from home.
How much notice should be given to returning to work?
Ideally, employers should give as much notice as possible but otherwise, reasonable notice with prior consultation on risk. Employers should also take into account issues for employees with child care responsibilities and any reasonable adjustments required for disabled or pregnant staff including working from home.
Potential claims against employers
As stated above, an employer is under an obligation to provide a safe working environment. Serious breaches of health and safety obligations can lead to criminal prosecution.
Employers also owe a duty of care to their employees and could be potentially liable for not providing a safe environment with social distancing if an employee contracts COVID.
If any employee is dismissed for raising health and safety concerns then this dismissal would be automatically unfair. It is also unlawful for the employee to suffer any detriment for raising health and safety concerns.
What happens if an employee contracts COVID or is required to self-isolate after having returned to work? Are they entitled to full pay?
Employees should be instructed to work from home in these circumstances. If they are unable to work then they would be entitled to be paid statutory sick pay if there is no contractual sick pay. This is £95.85 per week for two weeks for which employers with less than 250 employees are entitled to be reimbursed by the government. Alternatively, depending on circumstances it may be possible to put the employer on furlough leave, if eligible.
Do employees have the right to work from home or is this something that may happen in the future?
All employees who have been employed for at least six months have the right to request flexible working including working from home. There are certain procedural requirements which must be followed but ultimately, it is up to the employer provided one of the specified grounds for refusal apply, if rejected.
The government has indicated that it may give employees the right to work from home but, at present, the law has not changed.
Most companies are adopting a phased or voluntary return or having only key staff in attendance initially. Whilst the Government message may change, the health and safety considerations and employment issues remain the same.
This update was produced by Tessa Fry.
Disclaimer – This update is intended to provide readers with information on recent legal developments. It should not be construed as legal advice or guidance on a particular matter.
Grower Freeman Solicitors, 25-26 Ivor House, London NW1 6HR.
Website: www.growerfreeman.co.uk Tel: 020 7723 3040
© Grower Freeman 2020
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