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The legal reality of returning to work

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The government has begun to announce how UK companies can approach reopening their workplaces, giving us some indication of what a return to ‘normal’ work will look like in practice.

What is clear is that when it comes to certain questions around the health and safety of employees, it will be important to consider the employment law implications to ensure the most appropriate course of action. Here, we explore some of the key questions that many of us will be grappling with at the moment.

Can employees refuse to work if they feel it would be unsafe?

Many people may be feeling it would be unsafe to return to work, either for themselves or the people they live with, so could be wondering whether they can refuse to do so. The answer is not a simple ‘yes’ or ‘no’, because employees’ actions are judged according to all the circumstances of the specific situation.

This includes the advice available to them at a given time, for example from public health or the Government. In theory, employees cannot be disciplined for taking appropriate steps to protect themselves or others from serious and imminent danger, but the fact remains that this is an unprecedented situation and existing legislation has not been tested in this respect.

One particular fear employees may have around returning to work is using public transport, and travelling on busy trains and buses to get to work could potentially be considered as a serious and imminent danger to employees. Although conditions on public transport are outside of an employer’s control, it’s nevertheless a good idea for businesses to try and minimise the risks of getting to work for their staff. For example, they could consider offering more flexibility around start and finish times to help employees avoid travelling during rush hour.

How can employers show that they have implemented adequate safety measures?

Beyond this, businesses should aim to show staff they have implemented adequate safety measures to provide some reassurance. To comply with the Health and Safety Act 1974, employers should carry out a risk assessment before returning to work, taking special care to mitigate any new risks that could arise from the current climate, such as ensuring social distancing guidelines can be followed. Importantly, these measures should be kept under regular review, particularly in the days and weeks that follow the return to work.

What options do employers have if employees are not willing to come back?

Of course, these steps won’t necessarily be enough to reassure fearful employees that returning to work is safe. Arguably, businesses are somewhat limited in their options in this case.

Although there may be some sympathy for employers who are keen to re-start their businesses, this is probably not the time to play hardball with their employees. It is very possible that some staff could be suffering from anxiety or depression that makes them fear returning to work, which needs to be handled carefully and sensitively to avoid risking claims of discrimination.

Such claims can arise in situations where an employee’s mental state is considered a disability under the Equality Act 2010, for example. Other scenarios that could prove problematic to businesses include situations where an employer has dismissed a member of staff for refusing to return to work, but the employee had previously raised health and safety concerns and could therefore claim they were dismissed for ‘blowing the whistle’.

This means that, even if a business has taken appropriate steps to ensure returning to work is safe, they still need to be cautious around any action they take against employees who are fearful about returning to work.




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