Back to work

With the UK lifting the majority of mandatory Covid restrictions on 19 July, there are of course many businesses relieved at the move. Certain businesses, especially in hospitality, have taken a financial hit as a result of the restrictions, while many that are typically office based are equally keen to get people back into the workplace.

However, many employees are understandably wary about lifting many of these restrictions, especially if they’ve spent the past 16 months or more either working from home, on furlough, or protected by Covid-safe workplace measures. There’s a potential storm brewing between teams uncomfortable to return to the old way of working, and employers that are keen to get back to some sense of normality, if not handled properly. There is certainly a balance that needs to be struck.

HR teams will need to tread carefully when responding to worries about returning, especially in relation to any medical-based concerns. Photograph: iStock

However, despite how the government initially may have planned ‘Freedom Day’ to be a complete reversal of all rules, in practice this is not the case. Official government guidance (‘Working safely during coronavirus’) has now been published around ensuring a ‘Covid-secure’ working environment, with tailored advice for different settings such as hospitality, construction, hotels, offices and retail.

Will new guidance ease anxieties?

The new overarching guidance recommends different ‘priority’ actions to take to protect staff (and customers, if a business is public-facing). These include completing a health and safety risk assessment, providing adequate ventilation, cleaning more often, turning those with Covid-19 symptoms away from the workplace, asking people to ‘check-in’, and communicating these measures to workers, visitors and contractors.

Dependent on the setting, there is also more specific advice included. For some settings such as offices, factories and labs, for example, it recommends considering who really needs to be within the workplace, even with the government instruction to work from home where possible now lifted.

Across different settings, the guidance also goes into recommendations around face coverings, which has proved to be the true lightning rod in the debate around loosening restrictions. Unions, staff and even many employers, baulked at the idea of removing the mandatory mask policy from 19 July; indeed, many organisations, including Transport for London, Sainsbury’s, Tesco, Waitrose, John Lewis and Waterstones stated their intention to continue to ask customers and staff to wear masks.

Julian Cox: "Dismissing an employee for raising health and safety concerns or blowing the whistle in regard of these, may amount to an automatic unfair dismissal."

The government maintained its position that face coverings will no longer be required by law after 19 July, though its updated guidance stated it ‘expects and recommends that people continue to wear face coverings in crowded, enclosed spaces’.

What if staff refuse to work?

Even with Covid-specific restrictions lifting, employers still have duties and obligations to keep their staff safe under health and safety legislation that pre-dates the pandemic.

The Health and Safety at Work Act 1974 requires businesses to keep a safe working environment, taking all reasonable steps to protect employees and reduce workplace risks. Employees equally have a duty under the Act to co-operate with their employer, so that the business can comply with these obligations.

Some staff may still feel uncomfortable returning to the workplace even with safety measures in place, especially where remote working is a viable alternative. They may well believe that with cases rising, the safest place for them to work is from home, and these concerns may be amplified among staff who are immunocompromised or clinically vulnerable.

In these situations, human resources (HR) teams will need to tread carefully, especially in relation to any medical-based concerns. Should an employee have a disability under the Equality Act 2010, this affords protection against disability discrimination and means employers have a duty to make reasonable adjustments for their condition.

Employers also need to be aware that employees have a statutory right to request flexible working arrangements and will need to properly consider such requests in keeping with the statutory procedure if such requests are made.

Should an employee approach HR or a health and safety officer to express their concerns, or be reluctant or refuse to return the workplace as a result of restrictions lifting, the best first step is a very open and honest conversation about these issues. People’s Covid fears and anxieties are valid, and should be treated as such and addressed directly.

Keeping people safe

It could be as simple as talking through the measures in place to reassure people that every step has been taken to keep them safe, or having a discussion around additional accommodations that would make them comfortable to return to the workplace.

Failure to address concerns, or even by simply appearing to have dismissed them, could well expose businesses to claims on discrimination grounds. While many employment protections only come into effect after the first two years of employment, including unfair and constructive dismissal, this is not the case for discrimination claims – these can be sought no matter how long the member of staff in question has worked for the business.

Should these talks still lead to a stalemate, dismissal isn’t the only – or necessary – option, and could well inflame matters. By dismissing an employee for raising health and safety concerns or blowing the whistle in regard of these, this may amount to an automatic unfair dismissal. Like discrimination claims, there is no two year service requirement that applies to bringing such claims.

This makes it all the more important to deal with concerns raised by staff returning to the workplace sensitively. Listen to and act upon any anxieties expressed, so as to avoid what may be exposure to substantive legal liabilities. With many businesses still feeling the financial burden of the pandemic, the last thing any company wants right now is an unanticipated claim or tribunal case.

For HSE and the government guidance on Covid-19 see: hse.gov.uk/coronavirus

Julian Cox is Partner and head of London employment team at
BLM law firm: bestofboth.blmlaw.com