post lockdown return to the workplace – part 2: health concerns

Welcome to part 2 in the series of these return to the workplace blogs.  This week we focus on the physical health-related issues that are likely to arise as employees are invited (or ordered) back to the work.

Whilst the current government advice remains to work at home wherever possible, this is likely to change in the weeks ahead. Indeed last week in parliament, the prime minister indicated government’s intention to ease this restriction from next month if the coronavirus data remained positive.

Undoubtedly the primary obligation of any organisation is always to ensure the health, safety and wellbeing of their workers and visitors to the workplace.  In addition to the general principles, employers must now ensure a COVID-19 secure workplace and to document the measures that are being put in place which will include workplace layout, social distancing, cleaning, PPE and ventilation.

As mentioned in part 1 of these blogs, an employer should consider whether the return to work is essential, sufficiently safe and mutually agreed. ACAS also recommends a review of the coronavirus risk assessment and shared with staff.

Whilst many employees will embrace the return to a normal working life and engage with mentors and colleagues face-to-face, for others this may not be the case, particularly if travel to work will involve public transport. 

So what considerations are there?

The clinically vulnerable

Government advice for the clinically extremely vulnerable to shield at home is no longer in place and from 1 April employees are no longer eligible to receive statutory sick pay on the basis of being advised to shield.

Some employees will remain medically vulnerable and may have concerns about returning to work.  In these situations the employer is advised to consult with the employee and consider alternative options to include working from home, assuming a different role and furlough leave, the option for which has been extended until September.

As part of an employer’s legal duty to protect workers from harm, businesses should give additional consideration to those who may be more vulnerable to coronavirus and review appropriate measures to put in place. Further advice on returning to work safely can be obtained from the HSE Guidance.

When the employee lives with someone who is high risk

Some employees may have a concern about exposing someone they live with who is clinically vulnerable.  Employers should give consideration for this in their Covid risk assessment, discuss concerns with employees and consider appropriate measures to alleviate such concerns.

Disabled employees

It is widely recognised that the impact of the pandemic has had a greater impact on certain groups, and this is particularly so for many disabled workers who are afforded extra protections under the Equality Act.   It is always strongly advised for employers to engage occupational health in relation to their disabled employees or any other worker who has additional medical concerns regarding the return to the workplace after lockdown.  Thereafter an employer is obliged to consider, discuss and, where appropriate, implement reasonable adjustments to support employees in their role.  In the coming weeks reasonable adjustments are likely to include the continuation of working from home, a phased return or reduced hours in the office, a review of the work environment in terms of workspace, equipment and ventilation.

Pregnant workers

Again, employers always had a duty to ensure the health and safety of pregnant workers.  Since last year government advice is to adhere to stricter social distancing measures.  As always, employers are advised to review their risk assessment and current advice is to engage the occupational health team in relation to each pregnant worker.  If appropriate measures cannot be put in place to reduce risks an employer is obliged to suspend the pregnant worker on paid leave.  Current government advice for pregnant workers can be found here.

General Health and Safety Concerns

Employees may have additional protections in employment law if they refuse to return to the workplace or raise concerns where they have a reasonable and genuinely held belief of a serious or imminent danger.  These workers have statutory rights as a whistle-blower if they suffer a detriment or are dismissed after reasonably and genuinely raising such concerns.

Can an employer discipline or dismiss an employee who refuses to come to work?

Ordinarily, if an employee refuses to come to work in breach of their contract, this may amount to a disciplinary matter which could lead to a reduction in pay or even a dismissal.  Whether or not this will be fair will be very fact sensitive.  The employer will need to carefully follow their disciplinary procedure and ensure they are acting fairly and reasonably and not discriminating based on any protected characterises such as disability, sex, race, pregnancy or age.  

What are the risks for employers?

Employers have a lot on their plates in the weeks ahead and it’s not going to be a picnic.  Unless these health and safety concerns are reviewed and documented with appropriate measures being put in place employers may face a raft of grievances, claims and litigation.

As mentioned in last week’s blog, they key now is consulting with staff, sharing the risk assessment, listening to concerns and addressing these reasonably.  A phased return to work is also advisable – not only to reduce the numbers of workers in the office and establish employee confidence slowly, but also to allow time for the risk assessment to be monitored.

Without these careful steps, claims could be lodged in the employment tribunal for unfair dismissal, discrimination or breach of contract.  If the employee has raised a concern that there is a serious and imminent threat to health and safety, and they are treated unfairly (or dismissed) this may also give rise to a claim for whistleblowing or automatic unfair dismissal. Personal injury claims may also follow if the employer fails in their obligations and the employee suffers illness or injury as a result.

What next?

This is all a minefield and in the next few months we are all in unchartered territory as restrictions are eased and the office doors re-open.  

Watch this space for next week’s instalment as we focus on the mental health issues that will be a factor as employees emerge out of lockdown and are encouraged back to the workplace.

This blog is by Caroline Oliver, Senior Solicitor at Didlaw