RETURN TO WORK – POST COVID RESTRICTIONS

23 / 09 / 2021

The on-going Covid pandemic has challenged long established working practices and businesses have had to adapt over the last 18 months. Some businesses may be considering a hybrid way of working going forwards; part in the office and part at home. Others may be keen (or indeed need) to have all workers back in the workplace.

Can employers force employees to attend the workplace?

Whether it be on a full time basis, or a few days a week, some employees may understandably feel anxious about returning to the workplace whilst coronavirus continues to circulate and talks of new, more contagious, variants are rife.

Now that the Government recommendation to work from home, where possible, has ended, does that mean that employers can force employees back to the office? Whilst it is likely to be considered reasonable for an employer to request that employees return to the office or other workplace, employers should still tread carefully before taking disciplinary action or dismissing an employee for refusing to attend the workplace. This is the case, even if physical presence is required in the workplace due to the needs of the business e.g. where property agents are required to attend properties to meet potential buyers.

The employer will need to ascertain why the employee is reluctant to return. If an employee or worker refuses to return because they reasonably believe they are in serious or imminent danger then they are protected against detrimental treatment. If an employee is dismissed for refusing to attend the workplace in these circumstances, then that dismissal will be automatically unfair. The key question here is whether the employee’s belief that they (or others) will be in serious or imminent danger is reasonable.

As more and more people are vaccinated and we reach a level of “herd immunity”, it will become more difficult for employees to be able to rely on the risk of contracting coronavirus as a “reasonable belief” that they will be in serious or imminent danger at work.

In Rodgers v Leeds Laser Cutting 2020, an employee refused to attend the workplace until such time as (the first national) lockdown was over because he was concerned about the health and safety of his vulnerable children. The Tribunal found that he had not been unfairly dismissed. The Tribunal were not persuaded that, at the time, he had a reasonable belief in serious and imminent workplace danger. The Tribunal considered the employee’s behaviour outside of work, which included the fact that he had not self-isolated and he had driven a friend to a hospital. In addition, the employer had implemented safety measures at work in line with Government guidance and the evidence showed that there was no problem being able to socially distance with others at the workplace.

In contrast, in the case of Montanaro v Lansafe Ltd 2020, the employee attended a family wedding in Italy. Italy went into a national lockdown and he would have had to self-isolate for 14 days upon his return to the UK. The Tribunal in this case held that the employee had been unfairly dismissed because he had told his employer about the difficulties posed by Covid and he had proposed to work remotely in Italy until circumstances changed. The tribunal was satisfied that there were circumstances of danger, given the declaration of a pandemic and the risk of catching Covid-19, and that the employee took appropriate steps to protect himself in circumstances where he reasonably believed the danger was serious and imminent.

The above cases do not set any legal precedent and an employer considering dismissing an employee for refusing to return to work should seek legal advice.

We would recommend that employers take the following steps when preparing for staff to return to the workplace:-

  • Conduct a risk assessment and put in place safety measures to reduce the risks that are identified. Ensure that safety measures comply with current Government guidance.
  • Consult with employees before they are due to return to work. Explain the risks and the steps that you have taken to ensure that the workplace is safe for their return. Listen to employees’ concerns and take steps to ally their fears.
  • Seek legal advice before taking any disciplinary action or dismissing any employee that is refusing to return to the workplace because of concerns related to health and safety, disability, pregnancy (or any other protected characteristic).

Can an employee make a flexible working request to avoid returning to the workplace on a full time basis?

Employees who have been working from home during the pandemic may resist returning to full time office working by way of a flexible working request. Employees with 26 weeks’ continuous employment can make such a request and employers have a duty to consider the request and make a decision within 3 months from the date a request is made.

Flexible working requests can take the form of varied working hours, working part time or working from home. So, an employee who does not want to return to full time office working could make a flexible working request in order to make a permanent change to their contractual place of work.

The employer does not have to agree to the proposal to work flexibly, however, there are only eight specific grounds for refusal. These were, pre-Covid, typically easier to rely on to resist a flexible working request. But as businesses have had to adapt to home working, and most have done so quite successfully, it may be hard to refuse a request if employees have been working from home throughout the pandemic and the business has not suffered as a result. If the role is one that cannot be undertaken effectively from home then a flexible working request to continue working from home can be rejected.

In addition, if an employer receives multiple flexible working requests, it will have to assess whether all of them can be accommodated without adversely affecting the business. A business may not be able to accommodate all of the requests it receives if, for example, there would be an inability to re-organise work amongst existing staff, or if there is an adverse impact on the company’s ability to meet customer demand.

Employers that receive a flexible working request should take legal advice on how to respond to such a request, bearing in mind that the process must be completed within three months of receiving the request and that a refusal is only permitted in limited circumstances.

Employers anticipating that employees might want to make a flexible working request, might pre-empt the formal request by having informal discussions with employees about their return to the workplace and agreeing temporary arrangements, on a trial basis, to give the parties time to see if the arrangements will work in the long run.

Can an employer require employees to undergo Covid testing?

Employers may seek to introduce Covid testing for employees in an attempt to make workplaces more “Covid secure”. Whilst some may feel reassured by regular Covid testing as a way to minimise the risk of Covid infections spreading in the workplace, some staff may refuse to undertake testing on the basis that it is not a Government mandate and they could feel that it is an invasion of their privacy.

An employer wishing to introduce a Covid testing policy will need to undertake a risk assessment and should only introduce such a requirement if it is considered necessary and proportionate to do so. In many cases, an employer may be better off introducing voluntary Covid testing instead of a strict requirement for all employees to test negative before attending the workplace.

Employers that do require Covid testing will need to consider what they do with the test results. In most cases there will be no need to store data of negative test results. Health data is “special category” personal data and attracts a higher level of protection under the UK GDPR. If an employee tests positive, employers should not disclose the identity of that employee to others, without the employee’s consent. In most cases it will be sufficient to tell employees that there has been a positive test amongst their colleagues and advise them that they too should undertake a test or self-isolate for the requisite 10 days (akin to the way that the NHS track and trace app works).  

Can an employer force employees to vaccinate?

Unless there is legislation requiring certain employees to be vaccinated (as is the case for care home workers), it will be difficult to force employees to get vaccinated. Implementing a “no jab, no job” policy (as some employers have suggested they would do so) exposes the employer to claims for discrimination and unfair dismissal.

Key Points

  • If an employee/worker refuses to return to the workplace because they reasonably believe they are in serious or imminent danger, then they are protected against detrimental treatment.
  • If an employee is dismissed for refusing to attend the workplace because they reasonably believe they are in serious or imminent danger, then that dismissal will be automatically unfair.
  • An employee may make a flexible working request to change their place or pattern of work.
  • Workplace Covid testing should, in most cases, be voluntary rather than mandatory.
  • A “no jab, no job” policy may be difficult to enforce and could expose the employer to claims for discrimination and unfair dismissal.