According to government guidance published this week, employers in England are able to require employees to return to work from today (13 May) provided they cannot work from home.
But employers must have carried out a COVID-19 risk assessment and installed preventative measures before they can welcome people back to the workplace.
Katie Russell, partner in the employment law team at Burges Salmon, said: “In order to legitimately refuse to come into work, an employee would need to show that they reasonably believed they were in serious and imminent danger.”
Employers will have to consider all aspects of an employee’s workday, including their commute to work, start and finish times, lunch and other breaks, interactions with others, and their movement within the workplace.
Russell added: “Potential measures include ensuring social distancing is in place, reducing time spent with other employees and customers, using physical barriers, one-way systems and ensuring frequent hand-washing and cleaning.”
Julian Cox, expert in employment law and partner at BLM, added: “According to the Health and Safety Executive (HSE), all workers are entitled to work in environments where risks to their health and safety are properly controlled, which obviously could be more difficult to manage as we emerge out of lockdown.
“Moving forward, government guidance is clear that workplaces need to be ‘COVID-19 secure’ before reopening for those employees who can’t work from home.
"In addition, the prime minister has encouraged workers to report any breaches to the local authority and the HSE, which would afford employees whistleblowing protection.
“This is key, and caution is advised at this early stage if considering dismissals for employees who refuse to return over concerns that the business is not COVID-19 secure, or related to whistleblowing.
“These are categorised by employment statute as being automatically unfair, meaning an employee can bring unfair dismissal claims regardless of length of service. It’s somewhat of a bear trap for the unwary employer.”
Other legal specialists have differed from Russell and Cox. [link to Op Ed, once this is up]
However the CIPD supports the idea that workers shouldn't be forced to return to work and has
already seen some employers pushing workers to come to work during the lockdown.
David D’Souza, membership director at the CIPD, said: “We’ve heard isolated examples of people being asked to return to work where they aren't comfortable - and it seems likely that we’ll see more instances of employers and employees in conflict about whether a return to their workplace is necessary.
“We believe that people should only be asked to return when it is necessary, no other option exists and it is safe and mutually agreed.
“People shouldn't be placed in a position where they are being forced to attend work or where they feel they are placing themselves, or others, at risk.”
Overall, he stressed, employers should be considerate in how they ask employees to return to work.
Russell added: “Confidence that employers are taking steps to make workplaces COVID-secure will be key to encouraging employees and customers to return."
