In the UK,\nmany employers are busy making the necessary arrangements to re-open their workplaces\nand bring employees back to work as safely and efficiently as possible. Whilst\nthe current government guidance states that employees who can work from home\nshould continue to do so where possible, this is not an option for some\nemployees and, in any event, employers will want to be prepared for when this\nguidance changes.<\/p>\n\n\n\n
Employer health and safety obligations <\/strong><\/p>\n\n\n\n Broadly\nspeaking, employers have a legal duty to provide a safe working environment and\nto ensure the health, safety and welfare of their employees. Employers must be\nconscious of this when they ask employees to return to work and ensure that\nthey (i) conduct a risk assessment; and (ii) consult with employees (or their\nrepresentatives) about the health and safety aspects of re-opening the workplace,\nparticularly if this involves the introduction of new health and safety\nmeasures. Employers are not obliged to remove the risks completely, but they should\ntake all reasonably practicable steps in order to minimise the risks, which\nwill include complying with current government guidance. <\/p>\n\n\n\n Can an employee refuse to return to work on the basis that they believe they would be in \u201cserious and imminent danger\u201d?<\/strong><\/p>\n\n\n\n In recent\nweeks, there has been some discussion in the press about a small piece of\nemployment legislation which could give employees the right to walk out of\ntheir workplace if they believe that they are in serious and imminent danger.\nTherefore, whilst the majority of employees are expected to return to work\nwithout any issues, it is important that employers are aware of this protection\nand how it operates in practice. <\/p>\n\n\n\n Employees have a statutory right not to be subjected to any detriment or dismissed if they refuse to come into work because they have a reasonable and genuine belief that they are in serious and imminent danger. Whether the employer agrees with the employee is irrelevant, as long as the employee\u2019s perspective is reasonable. Although this protection was initially designed with extreme health and safety emergencies in mind (e.g. fire or asbestos), it could still apply in relation to the ongoing public health crisis that has been caused by Covid-19. <\/p>\n\n\n\n The general\nview is that, if the protection applies, employees would be entitled to remain\nat home on full pay while they cannot come in to work (as a failure to pay an\nemployee would usually be considered a detriment). Whilst it may be possible to\nmake an argument that a failure to pay an employee whose work was not performed\nis not always a detriment, this would be a relatively high risk approach as these arguments are currently\nuntested. <\/p>\n\n\n\n What can employers do now?<\/strong><\/p>\n\n\n\n Until this matter\nis tested in litigation, it is difficult to anticipate with any certainty how\nthe protection will apply in the context of Covid-19; for example, will it only\napply if an employee is clinically vulnerable and\/or in cases where there are very\nsignificant health and safety issues?<\/p>\n\n\n\n We are\nhopeful that we will get some clarification soon. However, in the meantime,\nemployers should be mindful that they have a duty to protect their employees\u2019\nhealth and safety and comply with government guidance (as well as any relevant\nlegislation). This is likely to involve steps such as providing adequate hand\nsanitiser and washing facilities, facilitating social distancing in the\nworkplace and allowing employees to adjust their working hours in order to\navoid peak travel times. <\/p>\n\n\n\n If an employee\ndoes refuse to return to work, this should be dealt with on a case by case\nbasis with reference to their specific circumstances (e.g. is the employee\nvulnerable and\/or do they have a disability). Any concerns that the employee\nraises should be investigated, and the employer should provide a written\nresponse. <\/p>\n\n\n\n