COVID-19: Addressing concerns of returning workers

As lockdown restrictions are progressively eased, employers are taking steps to ensure that workplaces are safe for returning employees. Government advice on the matter is changing; hitherto, it was that those employees who could work from home should continue to do so but from 1st August, employers will have more discretion to make decisions about how their staff can work safely. This could, of course, mean continuing to work from home, but it will also mean that many workers who are currently either working remotely - or are furloughed – will be asked to return to the workplace.

How will they react, and what can employers do to assuage legitimate concerns about health and safety issues?

Addressing concerns

It is easy to forget just how long the lockdown has been in place, but the time that many employees have spent away from the workplace may have caused a level of stress in their lives to which they are unaccustomed. For others, the process of lockdown and furlough/remote working may have exacerbated existing mental health conditions. A lot of stress and anxiety will centre around safety in the workplace, and concern about working during a pandemic.

In order to mitigate these concerns, employers should ensure that they consult and communicate with employees, advising them on the measures that have been taken to make the workplace safe, as well as what the employee needs to do in order to support these. It is vital that employers encourage employees to raise concerns early so that they can be addressed quickly.

For those employees with a known mental or physical health condition that puts them in the vulnerable category, employers should check to see if any additional reassurances are needed, or additional needs they may have during the pandemic.

It is important to bear in mind that if the employee states that they feel unsafe at work they may raise concerns in such a way that it amounts to a whistle blowing disclosure. This would provide additional protection from suffering a detriment as a result of raising the concern.

If, in the course of raising concerns, an employee discloses information about a health condition or disability, the employer needs to be careful as there may be GDPR considerations and the potential for disability discrimination.

In addition to consequences in employment law, not providing a safe workplace can give rise to criminal charges under the Health & Safety at Work Act 1974 and its associated regulations.

Refusing to return to work

Even when the employer has taken necessary precautions, implemented safety measures and listened to the concerns of employees, there may still be those who are not happy with the steps taken and may refuse to return to work. If this happens, the employer should establish why this is so.

Some things to consider:

• Has the employee been fully briefed on plans for health and safety in the workplace? The COVID-19 risk assessment should be made available to them.

• Are there any other provisions that could be put in place?

• Is there anything missing from the plan?

• Have other employees raised similar concerns?

• Have various scenarios and ‘pinch points’ been considered?

In addition, the employee could be asked about anything that would make them feel more comfortable returning to work. Communication is key as they may be looking for reassurance about their own wellbeing or others at home who are shielding.

Absence and pay

If a date for return has been advised but the employee fails to turn up and has not followed the absence reporting procedures, this would then be classed as an unauthorised absence. In this case, the employer would need to think carefully about payment to the employee in relation to their normal salary. This needs to be approached with some caution as there could be a breach of contract which might result in ACAS involvement and even the Employment Tribunal, over an unlawful deduction from wages claim.

Generally speaking, an employer is not required to pay their employees normal pay if there is a period of unauthorised absence.

Before considering not paying the employee for the absence, communication will be important. It is vital that the employer makes the first move and gets in touch with them to see if there is a reason for the absence. There could be a genuine reason for them not contacting their employer, and not coming into work.

If it is established that there are no acceptable reasons for the absence, then it is likely that the employer will be on safe ground for not paying them for their time of unauthorised absence. This needs to be communicated with the employee in writing so that they are clear about what is going on.

Disciplinary options

Under employment law, an employee has a legal right to a safe working environment. Furthermore, Section 44 (1) (d) and (e) and Section 100 (d) and (e) of the Employment Rights Act 1996 protects employees from detriments for raising health and safety concerns about their workplace. A detriment could be not paying an employee, or less favourable treatment, and ultimately dismissing an employee.

Legal advice is crucial

As both stopping pay, or disciplining an employee for refusing to return to work could give rise to employment tribunal claims under Section 44 and Section 100 of the ERA, we would strongly recommend that an employer obtains legal advice before taking such action.

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Looking for more advice or guidance on this matter, or any other business-related issue?

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