How to handle staff nervous about returning to work

With Covid restrictions lifted, Julian Cox explains that employers still have a duty of care towards their employees and must bear this in mind going forward 

With many of the Covid restrictions now lifted, there will of course be many businesses relieved at the prospect – especially those in hospitality, who have been hit hard financially by lockdown. Many others, typically office-based, are equally keen to get people back into the workplace.

However, many employees are understandably wary at the prospect of a complete lifting of restrictions, especially if they’ve spent the last 16 months or more either working from home, on furlough or protected by Covid workplace measures. There has been particular concern, for example, from unions and workers over the reversal of the mask mandate in stores and hospitality venues. 

It’s clear that unless the situation is handled properly, there is a potential storm brewing between teams uncomfortable to return to the old way of working and employers that are keen to get back to some sense of normality. There’s certainly a balance that needs to be struck.

Even with the restrictions lifted, employers still have duties and obligations to keep their staff safe under the health and safety legislation, which predates the pandemic. The Health and Safety at Work Act 1974 requires businesses to keep a safe working environment, taking all reasonable steps to protect employees and reduce workplace risks. Employees equally have a duty under the regulation to co-operate with their employer so it can comply with these obligations.

For some businesses, this might mean they need to continue social distancing in some form, or even mandate mask-wearing, especially in areas where the Delta variant is surging. Many employers, in particular those in retail or hospitality, are urgently seeking greater clarity from the government on Covid-19 safety guidelines after restrictions are lifted in England, amid continuing confusion over face coverings and vaccine passport checks. 

Some staff may still feel too uncomfortable to return to the workplace even with safety measures in place, especially where remote working is a viable alternative. They may well believe that with cases rocketing, the safest place for them to work is from home, and these concerns may be amplified among staff who are immune-compromised or clinically vulnerable.

In these situations, HR teams will need to tread carefully, especially in relation to any medical-based concerns. Should an employee have a disability under the Equality Act 2010, this affords protection against disability discrimination and means employers have a duty to make reasonable adjustments for their condition.

Employers also need to be aware that employees have a statutory right to request flexible working arrangements and will need to properly consider such requests in keeping with the statutory procedure if a request is made.

Should an employee approach HR to express their concerns, or be reluctant or refuse to return to the workplace as a result of restrictions lifting, the best first step is a very open and honest conversation about these issues. People’s coronavirus fears and anxieties are valid, and should be treated as such and addressed directly. 

It could be as simple as talking through the measures in place to reassure people that every step has been taken to keep them safe, or having a discussion around additional accommodations that would make them comfortable to return to the workplace. Failure to address concerns, or even by simply appearing to have dismissed them, could well expose businesses to claims on discrimination grounds. 

While many employment protections only come into effect after the first two years of employment, including unfair and constructive dismissal, this is not the case for discrimination claims – these can be sought no matter how long the member of staff in question has worked for the business.

Should these talks still lead to a stalemate, dismissal isn’t the only – or necessary – option, and could well inflame matters. Dismissing an employee for raising health and safety concerns or blowing the whistle in regard to these may amount to an automatic unfair dismissal. Like discrimination claims, there is no two-year service requirement that applies to bringing such claims.

This makes it all the more important to deal with concerns raised by staff returning to the workplace sensitively. Listen to and act upon any anxieties expressed, so as to avoid what may be exposure to substantive legal liabilities. With many businesses still feeling the financial burden of the pandemic, the last thing any company wants right now is an unanticipated claim or tribunal case.

Julian Cox is a partner and head of commercial law firm BLM’s London employment team