With lockdown restrictions beginning to ease and the Government’s road map out of lockdown shining light at the end of the tunnel, employers may now be considering what the return to work may look like, and when that might be. Employers must proceed with caution and manage the return to work, being careful to listen to their employees’ concerns and take measures to address them where possible.
In this alert, Partner and GC Beth Hale and Associate Naomi Latham look at the recent employment tribunal decision in Rodgers v Leeds Laser Cutting Ltd, which has provided some guidance to employers in this area, and have put together an essential checklist of key, practical points for employers to consider in preparing for a safe return to the office.
Rodgers v Leeds Laser Cutting Ltd
Mr Rodgers worked for Leeds Laser Cutting Ltd and was dismissed in April 2020. He brought a claim in the employment tribunal alleging that he had been dismissed because he refused to return to work in circumstances of danger that he believed to be serious and imminent (s100(1)(d) Employment Rights Act 1996 (“ERA”)) and that his dismissal was therefore automatically unfair. Mr Rodgers has a child with a chronic condition and said that he did not feel safe coming into work during the first national lockdown because of his fears of catching COVID-19. His employer said that his failure to attend work was not reasonable as his job could not be done from home and they had put in place appropriate safety measures to protect staff. The employment judge dismissed Mr Rodgers’ claim. While he recognised that Mr Rodgers had serious and understandable concerns about the risk of catching Coronavirus outside his home, these fears were not related to the workplace. Mr Rodgers never raised concerns about workplace safety with his employer. He also accepted that social distancing was not hard in the workplace and that frequent handwashing was practised. The judge confirmed that s100(1) ERA could be used in relation to concerns about COVID-19, but only if an employee reasonably believes himself to be in serious and imminent danger in the workplace rather than in the world at large. Relying on the provision in the way attempted by Mr Rodgers would risk allowing any employee to refuse to work in any circumstances simply by virtue of the pandemic.
Whilst it is only a first instance decision (and therefore not binding on future tribunals), this case demonstrates the limits of the duty imposed on employers to provide a safe working environment and may provide some level of comfort. In particular, the judge suggests that the employer’s duty is limited to safety in the workplace, and the fact that there may be a high risk of catching Coronavirus during a global pandemic does not automatically place employers in breach of their obligations. It remains unclear whether risks on transport used by employees to get to the workplace could also be relied on by employees in this way.
Measures for employers to consider
Employers should ensure that they have carried out a risk assessment and taken adequate steps to minimise health risks in the workplace before employees are set to return.
Measures employers should consider to protect their workforce will vary depending on the industry and particular workplace in question. Examples could include changing work times or staggering shift patterns, putting in place social distancing measures, reducing contact with other staff, or limiting work-related travel.
Consideration should also be given for the need for PPE: if a risk assessment concludes that PPE is necessary then this should be provided free of charge.
Communication is key
It is important to note that no measures can guarantee that a workplace is completely safe from COVID-19, and it is natural for employees to be wary about their return. As such, in planning a return to the workplace, the most important step for employers to take is to engage in open and constructive dialogue with its employees about the concerns they may have and the steps and/or measures that the employer is taking in response.
Other legal developments for employers to note
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is due to come into force from 31 May.
This Order will extend protection currently available only to employees to workers, giving a broader category of individual the right not to be subjected to detriment for refusing to attend the workplace or take other steps to protect themselves, when there are circumstances of danger that they reasonably believe to be serious and imminent. The changes will apply to all workplace dangers, but will be particularly pertinent in relation to COVID-19.
Practical points and essential checklist
It is a difficult time for employers when faced with making decisions based on an unprecedented set of circumstances. However, clearly documenting all decisions, primarily through risk assessments, is vital. Key points for employers to consider include:
- Prepare a specific COVID-19 risk assessment, and share this with employees;
- Ensure there is regular cleaning of the workplace, asking employees to wash their hands or use hand sanitiser regularly;
- Consider asking clients and/or customers and employees to wear face coverings, especially in areas that are client/customer facing;
- Take steps to encourage social distancing. Can you adapt your current floorplan?
- Consider ventilation (noting that specific guidance has been issued on this point by the Health and Safety Executive);
- Consider the impact of COVID-19 measures (including working from home) on people’s mental health;
- Consider updating workplace policies (such as, Health and Safety Policy, Annual Leave Policy, Whistleblowing Policy and Disciplinary and Grievance Policies); and
- Ask employees to remain at home, or ask them to return home, should they present Coronavirus symptoms.
- Monitor the situation as legislation and guidance changes, including in relation to the COVID-19 vaccine, and prepare to be flexible.
If you are an employer and would like to discuss the impact and implications of the return to the office on your business, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner and GC Beth Hale and Associate Naomi Latham, both of whom specialise in employment and partnership issues for multinational employers, senior executives, partnerships and partners.