Can my employer force me to return to work?
The Pandemic seems to be easing
Prior to Covid-19, the answer would most likely to have been a resounding YES! The reason being that the huge majority of employment contracts stipulate the location and times where and when an employee is required to be available for work. Employees or workers who refuse this contractual requirement would be breaching their employment contract, and therefore face the possibility of disciplinary action – including being dismissed.
Since Covid-19 however, employers must have heightened awareness of the risks associated with workplaces and this brings Health & Safety massively into play, in addition to Covid-19 linked regulations and advices.
Employers therefore need to carry out appropriate assessments and introduce policies prior to re-opening.
It is only right that employees are able to ask sensible questions about these safeguards and policies and feel safe about returning to work.
The duty of care owed to employees by employers
Employers must be aware of and look after their employees’ mental and physical health whilst at work.
Clearly some individuals will be nervous about returning to work – some more than others. Individuals with concerns should inform their employer about them. After all – it might also involve how an employee might travel to work. Is public transport required? How about childcare at home? And at work – where do you work? – open plan? Call Centre?
Not only do employers have the general duty of care concerning physical and mental health, they also need to discharge their Health & Safety obligations which would now extend to social distancing and sanitation in addition to the pre Covid list such as first aiders and alarms etc.
Furthermore, some employees may have protected characteristics under the Equalities regime such as a disability. Employers must remember that such cannot be discriminated against.
Overall, there is a lot that an employer must put in place to a) become compliant and b) resolve any concerns before a workplace can be reopened.
It will be reasonable for an employee to ask to see the employer’s risk assessment. This document should set out risks and how they will be mitigated. The Government has issued specific Covid-19 return to work guidance and this obliges all businesses to have a return to work Covid-19 risk assessment (see below). Employers should consult the workforce if here are more than 50 employees and then publish the risk assessment on the business website.
Flexible working requests
Employees may of course submit a flexible working request to reflect a desired new way to work. The right to make such a request is a legal one but the employer does not have to agree to any request no matter how suitable the employee may find the proposals. Businesses cannot ignore the requests however and are supposed to act reasonably in considering them.
It helps when making the request if an employee gives reasons for doing so and encloses any evidence showing how the proposals will not affect performance. This is more likely to persuade the employer into agreeing or compromising.
Some jobs will be incapable of substantial change however – think of prisons, hospitals and perhaps schools and the armed forces.
Not all businesses are allowed to reopen to the public yet
Most retail is now back open but certain leisure activities are still closed and obviously those employees cannot be asked to break the law by trading illegally.
Pubs and restaurants are now allowed to open if they can be shown to be compliant with requirements such as distancing and non-touch requirements. Otherwise they must remain closed. Businesses which flout the guidance or regulations can be closed by a prohibition order and be fined an amount of money.
What are the compliance consequences?
The Covid-19 restrictions became law (and therefore enforceable) in England on 26th March 2020. These regulations have been reviewed regularly to ensure they are effective and proportionate to the risk to public health. Everyone is required to comply with these regulations issued by the government in relation to coronavirus, in order to protect both themselves and others.
An owner, proprietor or manager carrying out a business (or a person responsible for other premises) who contravenes the regulations, without reasonable excuse, commits an offence.
In England, Environmental Health and Trading Standards officers will monitor compliance with these regulations, with police support provided if appropriate. Businesses and venues that breach them will be subject to prohibition notices, and any person who is 18 or over, carrying on a business in contravention of the regulations may be issued with a fixed penalty.
With the support of the police, prohibition notices can be used to require compliance with the regulations including requiring that an activity ceases. It is also an offence, without reasonable excuse, to fail to comply with a prohibition notice.
If prohibition notices are not complied with, or fixed penalty notice not paid, the Magistrates can impose unlimited fines.
How employers have been advised to help working safely
The Government has issued practical actions for businesses to take based on 5 main steps.
1. Employers should perform a Covid-19 risk assessment
They should also consult with the workforce if need be and post the risk assessment on the website.
2. Cleaning, hand-washing, and hygiene procedures should be developed
Employers are urged to encourage the frequency of this and supply sanitiser.
3. They should help people to work from home
This should be discussed with the individual and help given where possible
4. Maintain social distancing should always happen where possible
Businesses should erect signs to remind people and change work areas if possible.
5. Where people cannot be socially distant, employers should manage the transmission risk
Where it is not possible for people to exercise social distancing, businesses should try to manage any risk by discontinuing activities or shortening them, using screens, and stagger arrival/depart times.
So – a myriad of old and new. The contract of employment still stands but the right of the employer to require the employee to work will be subject to compliance with the law and regulations.
Everyone needs to be sensible honest and open with each other.
Concerns should be discussed freely with mitigation employed where possible but at the end of the day – keep safe.
10th July 2020
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