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Written by Brabners LLP
Covid-19: bringing employees back to work
On 10 May 2020, the Prime Minister outlined his plan to begin lifting lockdown measures over the coming months.
Employers and businesses will have been interested to hear Boris Johnson announce that anyone who cannot work from home, for instance those in the construction or manufacturing sectors, should now be encouraged to go to work (but avoid public transport). However, other than this statement, no detail was provided about how that return to work should be managed and what steps employers should put in place to protect their employees (and to help protect themselves from the risk of complaints).
The Prime Minister reiterated that any employees who can work from home should continue to do so.
Whilst the Prime Minister “encouraged” certain employees to return to work, this does not mean that businesses must, or even should, immediately recall their employees.
We anticipate that guidance for employers will be issued in the coming days in relation to the implementation of health and safety measures in the workplace. Businesses would be well-advised to wait until such guidance has been issued before notifying employees to return to work.
In any case, businesses will need to conduct risk assessments and implement steps to protect the health and safety of their employees before re-opening the workplace. Employers have legal obligations to provide a safe place of work for their employees both under health and safety legislation, and also under general employment law principles. Umbrella companies should therefore find out what measures clients have put in place to protect the health and safety of umbrella workers and conduct their own risk assessments. Employer should consider, for example:
Undoubtedly there will be employees who will be nervous about returning to work. In order to try to alleviate those concerns, employers should explain what steps have been taken to protect the health and safety of employees and engage with any legitimate concerns which employees may raise. As always, employers should ensure that they keep an audit trail of any risk assessments and any decisions/actions which are taken as a result.
Whilst an employee’s unreasonable refusal to return to work may warrant disciplinary action, employers should exercise caution before disciplining an employee in the current circumstances. If employees have a reasonable belief that their health and safety is at risk, then such employees are protected from being “subjected to a detriment” (such as being disciplined, or being kept at home with no pay) or being dismissed. In order to allay such concerns and reduce the risk of potential claims, it will therefore be important for employers to show that they have followed the Government guidance, undertaken risk assessments and implemented all health and safety protections that they reasonably can.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership