The Government has encouraged people who cannot work from home to return to work. However, with Coronavirus still prevalent, not everybody feels safe to be returning to work yet. 
 
Here we will consider measures employers should take to make their workplace safe to reopen and the legal rights of employees. 
 
 
Employers’ duties to provide a safe workplace 
 
The Health and Safety at Work Act 1974 imposes a legal duty on employers to ensure the health, safety and welfare of all employees at work, so far as reasonably practicable. Employers must provide a safe work environment with adequate facilities and without risks to health. 
 
Before opening, businesses should carry out a COVID19 risk assessment, involving employees and trade unions where appropriate. Businesses with more than 50 employees are expected to publish this assessment on their website, although all businesses should aim to. Employers should plan what will happen if a member of staff is diagnosed with Coronavirus after returning to work: will the entire office need to be closed, or can individual areas be closed while the rest of the workplace stays open safely? Will people who have been in contact with the worker before their diagnosis be asked to isolate? 
 
Social distancing measures should still be enforced, and businesses should maintain a two-metre distance between people wherever possible. To achieve this, businesses may consider how staff are seated and how they move around the office. This might mean avoiding hot-desking, installing signage and barriers, or staggering break times. Where a two-metre space is impossible, businesses should minimise the amount of contact. Hygiene measures should be increased, including providing handwashing facilities, hand sanitizer and face masks. 
 
Businesses can help reduce the risks of commuting by allowing staff to travel at quieter times or providing additional parking so that staff can drive to work. Any changes to working times and shift patterns must be made in line with the employment contract, or with the consent of staff. 
 
Businesses are also required under the Employers Liability (Compulsory) Insurance Act 1969 to insure against liability for injury and disease. Employers should therefore consider the effect of coronavirus on their insurance and may wish to discuss re-opening with their insurer. 
 
 
What if a workplace isn’t safe? 
 
Employees who are concerned about their safety at work should first raise the issue with their employer and discuss ways to improve the situation. 
 
If this does not resolve the problem, they should report breaches of safety guidelines to the Health and Safety Executive. Employees who report concerns will be protected by the law on making a public interest disclosure (whistleblowing)
 
The Employment Rights Act 1996, in s44 and s100, provides that employees who reasonably believe they are at risk of serious or imminent danger at work can leave work and refuse to return while the danger persists. 
 
 
What if employees are still reluctant to return? 
 
No matter what safety measures are taken in the workplace, some people may see leaving home as too big a risk. The government guidance has made it clear that employers should work with employees to assess and address risks in the workplace. Businesses should listen to concerns raised by staff and do their best to reduce employee’s risk of exposure. 
 
If this is not enough to reassure an employee, it may be possible to use holiday leave or even unpaid leave if both the employee and employer agree. As the Coronavirus Job Retention Scheme has been extended until October, employees could remain on Furlough leave for this time if both parties agree. However, the risk of coronavirus may not have completely ended by October, and so this is likely to delay the issue rather than solve it. 
 
Refusing to work without a good reason is generally a disciplinary matter, but businesses should think long and hard before pursuing disciplinary action. Given employees’ rights, this could prove a risky path to take unless employers are entirely satisfied that they have taken every measure to reduce the risk to staff. Employers should seek legal advice specific to their circumstances before taking any such action. 
 
 
Vulnerable employees 
 
Some groups of people, including pregnant women, older people and those with existing conditions, are at a higher risk from the virus. Employers may be failing in their health and safety obligations if they insist that these groups come into work and, in the case of disabled employees, could face discrimination claims for failing to make ‘reasonable adjustments’. 
 
Employers should consider all alternative options, including whether vulnerable employees could take an alternative role that allows working from home, or at least has less risk. If not, the furlough scheme is an option for such employees until October. 
 
Measures to protect older people may risk age discrimination. However, as there is a reasonable purpose in protecting the health of employees, proportionate measures are likely to be justified. 
 
Businesses should also consider how to support employees who live with a vulnerable person, even if they are not vulnerable themselves. As well as maintaining a positive working relationship, this will avoid any claims for discrimination by association. 
 
As we return to work, it’s important to remember that this is a difficult time for everybody. The best solution all round is for employers and employees to work together to achieve a safe outcome all round, for the good of both the business and individuals’ health. 
 
We have reduced our fees by 30% for the first three hours of employment law advice relating to Coronavirus. Get in touch if you need legal advice.  
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