Should I send my employees back to work?
The government has published a range of guidance notes giving more information and recommendations that may assist employers who want to send employees back to work. You can find links to the various guidance notes here. The key message remains that employees should work from home if at all possible. If this is not possible, there are various considerations you need to take into account before deciding whether to ask employees to return to work.
Is the employee clinically extremely vulnerable?
An employee will fall into this category if they have a specific underlying health condition that makes them extremely vulnerable to severe illness if they contract COVID-19. The advice remains that they should stay at home. If you require them to come to work (thus putting them at risk) you may breach your health and safety duty of care to them, putting you at risk of a constructive unfair dismissal claim or a personal injury claim if they come to work and then get sick (and you may also invalidate your employer’s liability insurance).
Is the employee a clinically vulnerable individual?
These are people who may be at increased risk from COVID-19, including those aged 70 or over and those with some underlying health conditions. The government guidance suggests that you may be able to require these employees to attend work if they cannot work from home, but you would need to give them the safest places to work and do a careful risk assessment.
There may be other risk areas e.g. the need to use public transport and it is by no means clear that it would be a lawful instruction to return to work if this places the individual at material additional risk. In practice, you should be extremely cautious about asking someone in this category to return to work and they should work from home if at all possible. You may also want to check your insurance position to see if you are covered if something happens to an individual in this category at work.
Does the employee live with a clinically extremely vulnerable individual?
The government guidance says that particular attention should be paid to those who live with clinically extremely vulnerable individuals. If requiring an employee to attend work puts someone in their household at risk, you should exercise extreme care and it may not be a reasonable instruction to expect them to come into work.
Does the employee have childcare responsibilities?
If in practice an employee needs to stay home to look after children, it seems unrealistic and unfair to require them to return to work (and they will probably say no anyway). You may need to distinguish though between situations where an employee would like to stay home with children but doesn’t need to, and a situation where this is really essential. Boundaries may become blurred as schools start to reopen if some parents choose to keep their children at home to keep them safe; there is no clear guidance on how to deal with this as yet.
What about everyone else?
If none of the above categories apply then the guidance suggests that you may be able to ask your employees to come to work if they cannot work from home BUT you need to ensure that you are able to comply with your health and safety obligations and your duty of care to provide a safe place of work. Government guidance suggests that you should do the following:
- Carry out an appropriate COVID-19 risk assessment, just as you would for other health and safety related hazards, and consult with your employees about this;
- Increase the frequency of handwashing and surface cleaning;
- Make every reasonable effort to comply with the social distancing guidelines set out by the government (keeping people 2m apart wherever possible);
- Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between staff such as:
- keeping the activity time involved as short as possible
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working (rather than face-to-face) whenever possible
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others)
Finally, if people must work face-to-face for a sustained period with more than a small group of fixed partners, then you will need to assess whether the activity can safely go ahead. Employees are not obliged to work in an unsafe work environment.
How can Tozers Help?
Tozers employment team have developed a fixed fee Coronavirus Employer Support Pack which is aimed at addressing your common questions through guidance notes and regular updates as well as providing a suite of documents to use in your communications. This along with our Employer Redundancy Pack are available to download on our resources page.
For further advice and support with contracts, the furlough scheme and staff transitioning back into work please contact our dedicated Employment Team.
Last updated on 15/05/2020