All content on this page is correct as of May 12, 2020
We are all now having to grapple with the easing of lockdown restrictions. For some UK employers this means turning to the difficult task of reopening their workplaces and considering what ‘normal’ should look like after the end of lockdown. At the forefront of this will be protecting the health and safety of staff coming back to work.
What duties do employers have?
Every employer has a duty, so far as it’s reasonably practicable, to ensure the health, safety and welfare at work of all its employees. This means that employers will need to do all they reasonably can to set up a safe work environment for their staff to limit the risk of them contracting Covid-19 in the workplace.
Whether businesses are envisaging a return to work for their staff as early as this week or later in the year, they will need to take the following key steps to comply with their legal obligations:
Further guidance for a safe workplace can be found in the government’s Covid-19 secure guidance.
Some key questions going forward
Can employers ask their workers to self-declare Covid-19 symptoms? How much information can be disclosed to other workers?
Employers can ask employees to self-declare symptoms. However, they should make clear that this is to protect the health and safety of staff and ensure that adequate privacy safeguards are in place for the safe storage of this data. Employers are unlikely to be able to insist that employees self-declare.
If a staff member has Covid-19 symptoms or has tested positive, relevant staff should be told that they may have come into contact with a person affected by Covid-19. No further details about the affected person should be given. Disclosure of the identity of an infected worker to others should only occur when absolutely necessary for health and safety reasons, in compliance with data protection regulations, and only to the extent necessary (including on a “need-to-know” basis).
What if an employee does not want to return to the office?
If government guidance allows, and a safe work place has been set up, employers can require staff members to return to the office. If an employee refuses to engage with and does not return to the office, an employer could consider disciplining the individual. However, it should be borne in mind that employees who refuse to attend work due to a reasonable belief in serious and imminent danger are protected under employment law from what is known as a “health and safety” detriment or dismissal (regardless of length of service).
An employee may want to continue staying at home because of pre-existing health conditions or may be reluctant to return to the office because they live with a vulnerable person or have other caring responsibilities. Requiring them to return to work, or disciplining them for not doing so, may further expose an employer to claims under health and safety and discrimination legislation.
In all circumstances concerns raised by employees about health and safety at work should be taken seriously and carefully considered. Employers should seek legal advice before proceeding down any disciplinary or dismissal route.
What should employers be considering in the long term?
Many employers whose employees can work from home will be taking this opportunity to reconsider their ways of working, the use of their office space and their organisational structures more generally. Employers should reflect carefully on the implications of more permanent changes that they (or their staff) will want to introduce, including:
Bates Wells will be organising a series of webinars focusing on managing work place returns, dealing with cash flow and financial concerns and longer term restructures around office space and new ways of working.
On 14 May at 10am, we are hosting the first in this series, COVID-19 – Planning for an uncertain future: An essential guide for HR professionals and senior managers. Click here to book.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of May 12, 2020.