Coronavirus and going back to work
Coronavirus and going back to work
On 17 July the Prime Minister announced that from 1 August the Government’s advice for England on going to work changed. This is what was said:
‘Instead of government telling people to work from home, we are going to give employers more discretion, and ask them to make decisions about how their staff can work safely.’ This could still mean continuing to work from home, or it could mean making workplaces safe by following COVID-secure guidelines. ‘Whatever employers decide, they should consult closely with their employees, and only ask people to return to their place of work if it is safe,’ said the Prime Minister. However, on 31 July PM Boris Johnson announced the postponement of some planned lockdown easing, including the reopening of bowling alleys, skating rinks, casinos and exhibition halls and conference centres in England. These premises will remain closed until at least 15 August unless the Government further postpones the proposed reopening.
The Government have updated the working safely during coronavirus guidance.
What are the 5 key points of the government guidance?
The guidance sets out practical steps focused on 5 key points, which should be implemented as soon as it is practical.
1. Carry out a COVID-19 risk assessment
Before restarting work your employer should ensure the safety of the workplace by:
- carrying out a risk assessment in line with the HSE guidance
- consulting with workers or trade unions
- sharing the results of the risk assessment with the workforce and on your employer’s website.
2. Develop cleaning, handwashing and hygiene procedures
Your employer should increase the frequency of handwashing and surface cleaning by:
- encouraging people to follow the guidance on hand washing and hygiene
- providing hand sanitiser around the workplace, in addition to washrooms
- frequently cleaning and disinfecting objects and surfaces that are touched regularly
- enhancing cleaning for busy areas
- setting clear use and cleaning guidance for toilets
- providing hand drying facilities – either paper towels or electrical dryers.
3. Help people to work from home
Your employer should take all reasonable steps to help people work from home by:
- discussing home working arrangements
- ensuring they have the right equipment, for example remote access to work systems
- including them in all necessary communications
- looking after their physical and mental well being.
4. Maintain 2 metre social distancing, where possible
Where possible, your employer should maintain 2 metre between people by:
- putting up signs to remind workers and visitors of social distancing guidance
- avoiding sharing workstations
- using floor tape or paint to mark areas to help people keep to a 2m distance
- arranging one-way traffic through the workplace if possible
- switching to seeing visitors by appointment only if possible.
5. Where people cannot be 2 meters apart, manage transmission risk
Where it’s not possible for people to be 2 meters apart, your empployer should do everything practical to manage the transmission risk by:
- considering whether an activity needs to continue for the business to operate
- keeping the activity time involved as short as possible
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working whenever possible
- staggering arrival and departure times
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’
What do the guidelines say about commons work areas?
The guidelines state as follows:
– Your employer should work collaboratively with landlords and other tenants in multi-tenant sites/buildings to ensure consistency across common areas, for example, receptions, staircases.
– Break times should be staggered to reduce pressure on break rooms or canteens.
-Use safe outside areas for breaks.
-Create additional space by using other parts of the workplace or building that have been freed up by remote working.
– Install screens to protect staff in receptions or similar areas.
– Provide packaged meals or similar to avoid fully opening staff canteens.
– Encourage workers to bring their own food.
-Reconfigure seating and tables to maintain spacing and reduce face-to-face interactions.
– Encourage staff to remain on-site and if this is not possible, maintaining social distancing while off-site.
– Regulate the use of locker rooms, changing areas and other facility areas to reduce concurrent usage.
– Encourage storage of personal items and clothing in personal storage spaces, for example, lockers and during shifts.
Can I refuse to go back to work if my employer has taken all reasonable steps to ensure my health and safety?
It is understandable that you will be concerned about your health and the increased risk of catching the virus in the workplace. The government has made it absolutely clear that you should be able to work from home where this is at all possible.
This FAQ focuses on the assumption that all necessary health and safety measures have been put in place. If they have not, please see the FAQ below this one.
Under your contract of employment, you are obliged to follow the reasonable instructions of your employer. What is considered to be “reasonable” is usually straightforward and it may very well be a fair dismissal to terminate your employment for refusing a reasonable instruction to return to work. Other ways of dealing with the defiance to the order (such as a warning) should, however, be exhausted first. A tribunal considering this would want to be satisfied that any employer made clear exactly what the employee was required to do, and crucially took all reasonable precautions for appropriate health and safety. Your employer’s compliance with Government guidance would be absolutely expected to be carried out.
It may also be that you have a legitimate reason for not going back to work. This could arise, for example, because you are unwell, someone else in your home self- isolating, you have an underlying health condition or are pregnant. If this is the case, you may be able to claim disability discrimination if you are then forced to go to work and/or no reasonable adjustments are taken into account.
A fear of catching the virus when you have no underlying health conditions is, however, unlikely to amount to a legitimate excuse not to attend work. Of course you can still raise your concerns and highlight a specific activity that is putting you risk of catching or spreading the virus, but without clear evidence you could find your self at the sharp end of disciplinary proceedings, and worse case scenario you could lose your job.
These are unique times, and you should always discuss your concerns with your employer and try to agree an amicable solution. There is a strong moral responsibility for employers to ensure that their employees and workers feel safe and secure in their employment. There is also a legal obligation that your employer should do everything it can to protect its workforce while complying with latest government advice.
What can I do if my employer has refused to introduce social distancing measures?
The Government has said employers should try to ensure workers are two metres apart from one another where possible, stagger start times and keep workplaces well ventilated. If you are instructed to go back to work without sufficient measures being in place to protect you from contracting the virus, this could be a breach of the health and safety duties by your employer, and also be a breach of the duty of care that underpins your employment relationship. Asking you to work in circumstances of danger may constitute constructive dismissal for which an unfair dismissal claim may be brought.
The Prime Minster has said that there will be spot inspections carried out to safeguard returning staff during the Covid-19 crisis. He also stated that staff with concerns that not all “practical steps” are being taken to promote social distancing can report companies to their local authority or the Health and Safety Executive (HSE). Local authorities and the HSE “can take a range of action, including where appropriate requiring your employer to take additional steps”.
You should enter into a sensible dialogue with your line manager or HR to discuss these issues, and if necessary and as a first step lodge a grievance if the situation is unresolved.
What if I go back to work, realise the danger and just leave?
Your employer cannot subject you to a detriment (say loss of wages or discipline) if you just left the place of work or any dangerous part of the place of work in circumstances of danger which was serious and imminent (which you could not reasonably be expected to avert). These principles derive from EU law.
Whether the danger is sufficiently “serious and imminent” will depend on what facilities are available to you to avoid the danger. This can relate to dangers caused by the behaviour of fellow employees, not just your employer. You can bring a claim for compensation in the employment tribunal if you are dismissed or have your wages withheld, although every case will be determined on its own facts.