Due to the worsening Covid-19 pandemic in the UK, the government announced a three-week UK lockdown on 23 March 2020, and the message is clear: stay at home. Aside from key workers and essential businesses, the government has expressly stated people should only go to work ‘where this is absolutely necessary and cannot be done from home’.
Employers must consider the following:
- Are your workers ‘key workers’ and critical to the Covid-19 response (for example, in the health/social care sector)? If so, the government requires them to attend work.
- Is your business ‘essential’ to the fight against coronavirus? For example, do you produce medical supplies? If so, the government has asked that you ‘keep going’.
- If the answer to the first two questions is negative, can you ensure the recommended social distancing is implemented across your workforce?
- Are your employees able to work from home? If the answer is yes, you should urgently implement this.
Legal position and ramifications if you force employees to attend work
Employers should assess the risk and continually consult government websites for updates. They should carry out a forensic analysis of their staffing requirements and how many people they physically need in the workplace.
If an employee refuses to attend work, the situation should be discussed with the individual before any disciplinary action is commenced. It may be possible to allay their concerns in some way – if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour, or provide them with parking if they would prefer to drive.
It is ultimately an employer’s choice as to whether they require their employees to attend work; however, government guidance should be followed and where your employees can work from home, they must. If they cannot, they must only be required to attend work if social distancing can be achieved.
As an employer you have a responsibility to provide a safe working environment for your employees. If you force your employees to go into work, against government or medical advice and there is a genuine health and safety risk from being required to attend work, this could amount to a breach of your duty of care to those employees. This may constitute a breach of the implied term of mutual trust and confidence, resulting in claims for constructive unfair dismissal and/or disability discrimination (if you employ ‘vulnerable persons’). Further, if an employee contracts Covid-19 as a result of you requiring them to come into work, they could potentially have a personal injury claim against you.
There is the added complication that all nurseries and schools have closed, except for children of key workers, who can still access educational services. Employees who aren’t key workers will therefore need flexibility to deal with childcare commitments. Employees have a statutory right to reasonable unpaid time off to deal with emergencies, so if you insist they come in despite a childcare emergency, or you treat them adversely for asserting that statutory right, you could face tribunal proceedings.
Key dos and don’ts for employers
- Comply with government guidance.
- Ensure staff safety.
- Allow employees to work from home wherever possible.
- Communicate with staff clearly and reassuringly.
- Utilise government support schemes.
- Take legal advice.
- Scaremonger staff into coming into work.
- Prevent home working, where it is possible.
- Ignore social distancing guidance.
- Discipline staff who cannot attend work because they are self-isolating, have childcare issues or are a ‘vulnerable person’.
Despite the unprecedented circumstances, it is imperative for employers to remember that employment law principles still apply and a failure to adhere to these, can result in both grievances and tribunal proceedings.
Jennifer Smith is a partner in the employment team at JMW Solicitors LLP