A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
With the UK Government releasing its plan for handling the next stage of the Covid-19 Pandemic, all employers are considering when and how their employees will return to their workplace. Aside from employees of essential businesses and keyworkers, most employees will likely have been working from home or furloughed as part of the Government’s scheme over the last two months. The return to work is, therefore, likely to be a big step for employers and employees alike, with some employees apprehensive at the prospect. This e-briefing will explore the options an employer can take if an employee refuses to return to work.
The Government’s advice remains that workers that can work from home should continue to do so for the foreseeable future wherever this is possible. For some sectors, however, this is not feasible, and businesses and their operations can only function when employees physically attend their workplace.
Before any return to work takes place, an employer should assess the risks posed by Covid-19 at the workplace and put in place suitable and sufficient measures to mitigate such risks. The measures instigated may range from placing physical barriers to prevent spread, such as plastic screens between desks, to increasing the facilities for handwashing and sanitising equipment. It is likely that employers will also have to remind their employees to self-isolate if a member of their household becomes symptomatic and discuss with them finding alternatives to using public transport where appropriate.
It is only once this risk assessment has been completed and the necessary measures have been implemented that an employer should ask its employees, who are unable to work from home, to return to the workplace. It should be noted that the method and nature of each request are likely to be key to ensuring support from employees; employers should recognise the importance of employees and their families remaining safe and set out the measures they are putting in place to mitigate the risk of infection, allowing employees to ask questions and pointing them to sources of support. Government guidance notes that employers should consult and co-operate with employees and their representatives when undertaking these risk assessments and then share the results of such a process with the workforce.
Whilst some employees will agree to return, some employees may refuse to do so. Below, we have provided some example case studies regarding the actions employers may be expected to take.
- Vulnerable and/or shielded employees
Employees who are clinically vulnerable, i.e. are over 70 and/or have pre-existing conditions are being advised by the Government in their latest guidance, Our Plan To Rebuild: The UK Government’s COVID-19 recovery strategy to continue to take care and minimise contact with others outside their household. Before any clinically vulnerable employee returning to work, employers should carry out a risk assessment to assess whether this is still possible both in the workplace and in how they travel to the workplace. We expect that this assessment will identify that clinically vulnerable workers should continue to work at home, or if possible, be moved to a role where they can do so. If it is not possible for these individuals to work from home, employers should seek to take advantage of the Government’s Coronavirus Job Retention Scheme and place these employees on furlough, so the cost of 80% of their pay is met by the Government. It would be unwise for any employer to seek to force a clinically vulnerable employee back to work; aside from the unreasonableness of such actions, it also carries the risk of discrimination as many of those in the clinically vulnerable category will have a disability as defined by the Equality Act 2020.
Shielded employees are those considered extremely clinically vulnerable who have received a letter from their healthcare provider asking them to shield and remain within their household. The recent guidance from the Government confirms that these individuals should remain within their house and not leave for any reason. This shielding is confirmed to continue beyond June although the Government has given no indication of any further timings. With this in mind, shielded employees must remain at home and either work from home if they can or be placed on the Coronavirus Job Retention Scheme.
- Employees with suspected or confirmed Covid-19
In accordance with Government guidance, those individuals who have suspected or confirmed Covid-19 should self-isolate at home; similarly, we would expect employees to be advised to stay at home if a member of their household is symptomatic or has tested positive for the virus.
Government guidance states that individuals who are self-isolating because a member of their household is symptomatic should stay at home for 14 days from the first symptoms. Individuals who are symptomatic and/or have tested positive can return to work seven days after the first symptoms. In practice, the virus affects people in so many different ways that some may be well enough to return after seven days, and some may take longer.
In both cases, employees should only return to work if they are symptom-free.
Employers should keep in contact with self-isolating employees to track their condition and welfare. Employees will need to submit a self-isolation note after seven days absence for the continuation of their statutory sick pay.
- Employees who cannot return due to caring responsibilities
Whilst some schools are beginning a phased return, the vast majority of children are unlikely to return to classes before September. There may also be issues finding childcare due to social distancing measures affecting both families and the applicable capacity of childcare providers. Similarly, some employees may have to care for elderly, sick or disabled relatives.
Employers should be looking to see whether these employees can continue to work from home, and if this not possible, they should be placed on furlough taking advantage of the Coronavirus Job Retention Scheme. Alternative suggestions could include discussing with the employees whether they would like to take unpaid parental leave. However, given this leave is unpaid, furlough would be the preferred option for most employees in this situation. Employers should be mindful that if they were to force such employees back to work, they could risk discrimination claims. The Prime Minister has made it clear that employers must continue to be sympathetic to employees with caring responsibilities and to work with them to find the best option.
- Employees that do not fall into the above categories and do not want to attend work
In the first instance, employers should contact the relevant employee to understand their concerns regarding returning to work. In response to this, the employer should endeavour to co-operate with the employee in order to find a solution. For example, if the employee is concerned about the risk of infection on their commute, it may be that the employee can be given a car parking space at the office to avoid them catching the bus. The employee might have underlying physical or mental health conditions which are making them nervous about returning to work. These must be addressed, especially if they constitute a disability under the Equality Act 2010.
If the employee still refuses to attend and all reasonable steps have been taken to address their concerns, the employee could be offered time off as holiday or unpaid leave.
If the employee refuses to attend work or take the time off as holiday or unpaid leave, there is an argument that they are failing to follow a reasonable management instruction, and this is a disciplinary matter. However, given the current crisis and the levels of fear and uncertainty, employers should avoid that route as a tribunal might consider such actions to be unreasonable.
If you have any questions regarding this e-briefing or require support in planning your employees return to work please do not hesitate to contact Matthew Wort, from our Employment team, or Lorna Kenyon, from our Regulatory Team.
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