The COVID-19 pandemic has prompted many changes to working arrangements, however with a return to the office imminent for some in June under the government’s road-map out of lockdown, many employers are assessing how they can prepare for a safe return to the workplace.
Katie Bowen Nicholas, Employment Law Solicitor at Hegarty Solicitors discusses key points employers need to consider when making the transition back to the workplace.
Employees who have been working from home since the start of the pandemic or have been furloughed may feel anxious about returning to their place of work and employers have a ‘duty of care’ to reasonably support their employees’ health, safety and wellbeing which includes making sure the working environment is safe, protecting staff from discrimination and carrying out risk assessments.
New legislation came into force on 31st May 2021 that offers protection from detrimental treatment for workers who refuse to go to work because of health and safety fears. Previously this protection was only afforded to employees, however the introduction of the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, means that those classified as workers are now entitled to this protection.
The legislation does not give workers an absolute right to refuse to return to work, should they possess a ‘reasonable belief’ that they (or others) would be in serious or imminent danger, but the onus lies with the employer to show steps taken to mitigate against the risk of any perceived threat.
In March, the Employment Tribunal in Rodgers v Leeds Laser Cutting found that the employee who refused to return to work until lockdown restrictions were lifted because he believed his workplace posed a “serious and imminent” danger to his children, had been fairly dismissed. The judge deemed the evidence provided by the employee as “vague” and “contradictory” and the tribunal found that he could have followed guidance put in place in the workplace around social distancing and hand washing.
However, employers should not assume that similar cases will fail, and they should ensure that requests to return to the workplace during the Covid-19 pandemic are reasonable and that adequate safeguards have been put in place to reduce risks and follow guidance. Employers are advised to talk to employees and workers who have concerns about returning to the workplace and, if these are valid, to make adjustments where possible, as any employee or worker who has a reasonable belief that their workplace poses a serious and imminent risk, based on evidence about Covid-19 available at the time, will be protected.Contact us