Advice

Return to work legalities: what must HR consider?

22 May 2020 By Elizabeth Howlett

Employers must carefully bear in mind whistleblowing legislation, the risks associated with testing staff, and the potential for automatic unfair dismissal claims

Following the government’s recent updated guidance to get Brits safely back to work, organisations are taking tentative steps to prepare for the workforce’s return from lockdown.  

A series of guidelines announced by Boris Johnson earlier this month outlined the roadmap for a successful reintegration to working life which included risk assessments, social distancing and rigorous cleaning processes. But any restoration of staff to the workplace will come with a raft of legal considerations and implications for organisations to consider. 

Speaking during a CIPD webinar, Translating returning to the workplace guidance, Andrew Willis, head of legal and advisory at HR-Inform, highlighted the feelings of uncertainty many shared around the new guidelines. “We are in ‘phase one’ so employees should work from home where possible. However, the guidance is that workers unable to work from home should travel to work (if it is open) as soon as it is practical,” he said.

A lack of clarity has the potential to open a can of legal worms for organisations that act too quickly. So what should HR consider when managing the return to work? 

Line managers should conduct one-to-one meetings 

Willis said three words were key to managing the return to work: contact, clarity and consistency. He advised line managers should take the lead with contacting employees to discuss their views on returning to the workplace. “Ideally managers should discuss the return to work with each employee one to one,” said Willis. “If this isn’t possible, a written communication at least is advisable, inviting queries and clearly setting out expectations.” 

The two risks of conducting health tests 

In regards to organisations conducting health tests and temperature checks on employees, Willis said: “Certainly there is a primary focus on maintaining safety, and being assured of someone's health status would help. However, the employer would need consent to carry out a medical exam or a temperature check.” 

Willis added: “Temperature checks may not work. Some people don’t display all the symptoms and it wouldn’t catch everyone. [So] even if you got consent from employees, it does carry risks for the employer.” 

He outlined the two major pitfalls:

  • Data protection. Health information is what's known as ‘special category data’ so it can only be processed on medical grounds. The only exception would be for an occupational health professional to manage that data. Rather than carry out checks and store information, just ask questions of employees and keep an eye out for symptoms to be alert of, Willis advised. If you are a small organisation you could ask them as they walk in the door and that would save you storing data, he added.
  • Possible claims of constructive dismissal. These types of tests could leave employers open to claims of constructive dismissal, so it’s wise to proceed with caution, Willis said.

What is the legal stance if employees refuse to return? 

Willis explained: “Employees may be reluctant or nervous to return to the workplace, so keeping in contact with people and providing clarity and consistency is important.” 

If employees were nervous, Willis advised that employers should ask the question of whether they could remain on furlough or work from home. “Could their concerns be addressed by different staff times or workplace alterations?” he asked.

Willis advised the consequences of an employee refusing to return (if the employee’s unique situation was not covered by current guidance) might include “the withholding of pay or even disciplinary action – but that should very much be a last resort.”

He said: “Employers should bear in mind the discrimination and unfair dismissal risks [including the context of constructive dismissal]. The employee could have a disability or they could raise an automatic unfair dismissal claim if they feel in adverse danger. You have to show understanding and empathy and do what you can to meet those concerns.”

He added that “employees raising a safety concern or making a disclaimer about being at risk could put them under a whistleblowing legal scope”, so employers should be mindful of all eventualities and outcomes before taking action. 

Ultimately, Willis said employers must make sure “your rules are clear and everyone understands the outcome of rule flouting”.

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