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COVID-19 — getting back to the office safely

The last couple of weeks have proven yet another rollercoaster for workers, employers and the UK economy.

We've seen starkly different messages around returning to work in different parts of the UK, while COVID-19 cases rise and restrictions are re-imposed in some areas.

Here in Scotland, first minister, Nicola Sturgeon, recently confirmed planned relaxations will be delayed for a further three weeks, with working from home to remain the default for now.

So what of the threats to health and safety from COVID-19 for UK employees, when the time for return to work comes?

What should employers have done by now, and what can they do? What can employees legitimately expect and what protections do they have?

The background

Recently, while UK Government civil service bosses urged Whitehall workers back to the office, citing the organisational and economic impact of continued absence from office centres, trade unions reportedly branded them “Luddites”, warning workplaces have changed forever and that governments must focus on adapting to embrace a new working world where technology makes home working easier.

The UK recorded around 3,000 coronavirus infections for the second day running on Monday 7 September, fuelling fears of a resurgence of the virus. The Scottish Government announced new lockdown restrictions in Renfrewshire and East Dunbartonshire, with an extension of restrictions in Glasgow, East Renfrewshire and West Dunbartonshire.

That was prescient given the announcement of 176 new cases across all Scottish mainland NHS areas and three deaths in the 24 hours leading to the first minister’s 8 September daily briefing. That came almost at the same time as secretary of state for health and social care, Matt Hancock’s, expression of clear concern in the UK Parliament about the increases in reported infections and his confirmation of tightened restrictions in Bolton, followed by further restrictions on meetings of over six people across England regarding social gatherings that same day.

Many hoped the eagerly awaited review of 10 September would have opened office doors once again (albeit in a COVID-19-secure manner) but few were surprised by the Scottish Government’s rather sage reminder that the circumstances are considered far from suitable for that at this time and with further restrictions on social gatherings.

The legal context

By now, regardless of what side of the border your business operates on, you ought to have a specific COVID-19 risk assessment in place.

This will set out the risks identified in your working practices, how they will be tackled at source and reduced to an acceptable level by specified measures, so that you can reassure your employees, when the time is right for their return.

Some measures will be sector specific, but typically these will include traffic, visitor and activity restrictions; staggered shift times; increased hygiene, population and social distancing controls; contact tracing processes and the removal of shared facilities.

A common issue arising already has been the vexed position of employers who, having done all they reasonably can, are met with staunch refusals from employees invited back to work.

Assuming they have taken all those reasonable steps, they are not obliged to pay staff that do so; however, if they are tempted to revert too quickly to disciplinary and dismissal sanctions, they may do so in haste but repent at leisure. Reassurance and encouragement may be a preferable strategy, at least in the short term.

Employees in the UK have significant protections against any detriment or dismissal arising from circumstances where they reasonably consider there’s a serious and imminent threat of danger from their workplace and refuse to return.

They need no qualifying service to present claims — they don’t need to have worked for that employer for a minimum period of time — and any awards in their favour are unlimited.

When the stars are finally aligned for a return to so-called non-essential working, irrespective of where your business is in the UK, employers should ensure their workplaces are as COVID-secure as they reasonably can be, and that their workforces are made aware of all of the measures in place.

John Lee

Edinburgh-based partner John, who is qualified to practise in Scotland, England and Wales, is one of a small number of solicitor advocates in the country accredited by the Law Society of Scotland in employment law and discrimination law. He has considerable expertise advising clients from a wide range of sectors including energy and utilities, defence, food and drink, healthcare and social care.

Posted, 16 September 2020 by John Lee
Categories: Coronavirus | Coronavirus and employment law | Employment | Insights