Employees: Returning to Work

If you've been furloughed your employer may soon ask you to return to work.

Here we have answers to some of your questions...

 

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CAN MY EMPLOYER FORCE ME TO RETURN TO WORK?

Yes, they can. As an employee, you are governed by the contract of employment, and this will usually stipulate your usual place of work where you are required to work. Furthermore, an employer can issue a reasonable instruction to an employee, and the employee is obliged to carry out such reasonable instructions. Failure to return to work under these circumstances can be interpreted as a breach of contract by the employee and an act of misconduct. These could lead to disciplinary action with dismissal as a possible sanction.

Even if the job activities can be performed at home, an employer is not required to agree to home working. However, the employer is under a statutory duty under the Health and Safety at Work Act 1974 (and various regulations made under it) to ensure that they provide a safe working environment and a safe system of work. To comply with these duties, the employer would be expected to adhere to advice issued by the government and Public Health England. The current social distancing and isolation advice is to stay at home, not to go into work unless the job can be carried out from home. Even if the job can be carried out from home, the employer can still require you to attend work, provided it is safe to do so.

WHAT IS THE EMPLOYER EXPECTED TO DO?

An employer should carry out a risk assessment to identify all the potential risks that employees could be exposed to when they return to work. This of course should include COVID-19. The employer should identify who is/could be at risk, how many could be at risk, how they could be affected, classify the risks as low/medium/high, and finally, identify control measures put in place to minimise the impact of these risks. Elimination of the risk is clearly not viable; thus, steps must be taken to reduce the possibility and impact of infection. Employers should consider whether working from home is possible. If not, will they be safe at work? Introduce a rota for working from the office,  introducing staggered start times, staggered shifts – minimise contact and the number of people in the office, setting up rigorous social distancing policies in the office (with nominated people responsible for monitoring and enforcing it), set up strict hygiene policies – provision of hand sanitizers at the main entrance to the premises, and generally everywhere on site, rigorous cleaning of door handles (especially to the doors leading to the toilet) and work surfaces and adequate ventilation. They could also check temperature on each employee on entering/leaving the premises. Where relevant, the employer must supply personal protective equipment.

Employers’ should be reasonably certain that having taken adequate safety measures, nothing more can be done to protect the safety of staff before allowing them in. If safety is in doubt, the employees should be kept away from work until such time when safety can be maintained. Unions are quite rightly very vociferous about their members safety, and they should b involved in any consultations and disputes.

Once the employer has followed PHE/Govt advice, and implemented safety steps into the workplace, it becomes very difficult for an employee to refuse to go into work.

WHAT IF AN EMPLOYEE HAS SAFETY CONCERNS ABOUT RETURNING TO WORK?

Staff should be informed and reassured that all appropriate advice has been taken, and steps taken in line with current guidelines and practices. If a risk assessment was carried out and control measures put into place, the employee should not have any legitimate concerns. But if they do, they should raise them with the employer.

In extreme cases, employees may feel very strongly that their safety is being prejudiced at work and so refuse to come into work. Willfully refusing to come into work is a very serious matter, and should not be taken lightly, as the consequences can be very serious. At the same time, employers should not rush into taking drastic disciplinary action. Instead liaise with the employee, and others at large, to see what the common concerns are, and what can be done to allay those fears. Employers should be mindful that any disciplinary or detrimental action against an employee due to or is influenced by a health and safety concern, could potentially be automatically unfair. This delicate situation must be handled very sensitively.