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Coronavirus – FAQs on staffing decisions when reopening workplaces

05 November 2020

Employers are facing many employment law issues as the guidance on working safely during the Covid-19 pandemic continues to evolve. These FAQs cover specific issues in relation to deciding which employees should stay at home and what happens if employees do not want to come to work.

See also our FAQs on managing a safe return to work which cover health and safety obligations, medical testing, contact tracing, and adjusting hours and responsibilities. Our FAQs on furloughing employees deal with all aspects of the government’s Coronavirus Job Retention Scheme. Our staffing decisions flowchart sums up the position in these FAQs to help employers decide which employees should attend their workplace as the pandemic evolves.

The latest position is as follows:

  • On 31 October 2020 the government amended its guidance to say that the over-60s should now treat themselves as if they were clinically vulnerable, and therefore at higher risk from Covid-19. The government has not provided specific guidance for employers on this issue (we will update these FAQs when we know more).
  • In a last-minute change of plan the government has decided to extend the furlough scheme, which had been expected to end on 31 October, until December 2020.

Should every office-based employee in England work from home?

The new lockdown measures require employees to stay at home except where they cannot work from home, i.e. it is not reasonably possible for them to do so. If the exception applies, they can go to work. For more information, see our article on the new lockdown restrictions.

For many, travelling to an office to carry out a screen-based role is unlikely to be justified, although there will be some office-based employees for whom it is not reasonably possible to work from home. Employers will need to make a careful assessment.

The government’s Covid-secure guidelines on working safely during Coronavirus says that, to help contain the virus, office workers who can work from home should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work.

The guidance also states that employers should consult with their employees to determine who needs to come into the workplace. When employers consider that workers should come into their place of work, then this will need to be reflected in the COVID-19 workplace risk assessment and actions taken to manage the risks of transmission. Extra consideration should be given to those people at higher risk.

If staff need to come to work, you may wish to consider providing letters confirming that it’s not possible for them to work from home so that staff can carry these letters with them and produce them in the event that they are stopped and challenged.

Our staff need to attend the workplace – but what if they are worried about using public transport?

The government has published guidance on safe travel in England which advises people on using public transport during the coronavirus outbreak.  The advice guides public transport users to travel at off-peak times if they can, comply with social distancing, and to walk more of their journey where possible. It would be advisable for employers to accommodate any employee requests to amend their working time to facilitate compliance with this guidance.

There are potential legal risks associated with requiring employees to come to work if they are reliant on public transport. For more guidance on this issue, see our article "Does an employer's duty of care extend to commuting to work?".

What if the employee says that they cannot come to work, citing serious and imminent danger?

All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they are in “serious and imminent danger”. For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes they are in serious and imminent danger. It’s not relevant that you disagree about the danger – the question is whether the employee’s perspective is reasonable. This can include danger caused by the behaviour of work colleagues.

In situations where this protection applies, the employee would be entitled to stay at home on full pay for as long as they are refusing to return to the workplace because of serious and imminent danger. At least, that is the implication, since “detriment” would ordinarily cover loss of pay. There may be scope for arguing that a failure to pay an employee whose work was not performed is not always a detriment, but these arguments are untested.

This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action. It was not designed with Covid-19 in mind and it is difficult to predict how an Employment Tribunal (ET) will apply it to the current risks. The right was also designed for dangers in the workplace and it is unclear if it could be extended to dangers associated with the employee’s commute.

The ongoing uncertainty over the risks presented by Covid-19 combined with the constantly changing picture may mean that ETs regard an employee’s concerns as reasonable even if they have no particular vulnerability, the employer is complying with all guidance and no cases of Covid-19 have been found in the workplace. Alternatively, employees may need to show that they have a vulnerability and that there are significant health and safety lapses before it is reasonable for them to consider themselves in serious and imminent danger.

We expect that the scope of this legal protection and its potential application to Covid-19 will be tested in litigation soon. Until then, it is difficult for anyone to be sure how it will apply. It is clear that at least some employees may be within their rights to stay at home on full pay in some circumstances. It is also clear that you can reduce the chances of this argument succeeding by being scrupulous in your approach to health and safety.

If an employee asserts that they are refusing to work for this reason, you need to make sure that you investigate their concerns and provide a reasoned and documented response. Remember your duty of care towards employees who are worried and ensure you are taking practical measures to support their mental health and wellbeing. Many employees will be anxious, and you should anticipate this.

For more practical guidance on how to mitigate the risks of this type of claim, see our table.

What if an employee is not ill, vulnerable, in any special category or citing any particularly serious dangers but is unwilling to come to work even though they cannot work from home?

You could potentially take disciplinary action against such employees where you are confident that you are taking all reasonably practicable steps to control the risks of transmission. There are risks involved in taking this approach, especially given that we lack any caselaw indicating how ETs will approach the fairness of such dismissals. Any dismissal could be regarded by an ET as unfair and disproportionate in the current situation and any disciplinary action could result in constructive unfair dismissal claims.

A more cautious approach would be to offer unpaid leave - employees who are not able, ready and willing to work are not entitled to pay – while seeking to reassure the employee that you are complying with the workplace safety guidance, offering support with mental health and wellbeing and encouraging them to continue coming to work.

You could potentially also agree to put the employee on furlough. Some employers agreed to furlough requests from the “worried well” in the early days of the pandemic, given the uncertainty about risk and transmission. However, as there is now more available information about these issues and how to make workplaces Covid-secure, employers may not want to take the same approach – particularly where work is available. Certainly there is no obligation to place the employee on furlough.

What if the employee is classed as vulnerable and they are unhappy about coming to work?

Currently, the government recognises two groups of vulnerable people – those who are clinically extremely vulnerable and those who are clinically vulnerable.

The clinically extremely vulnerable have been advised to take new shielding measures with effect from 5 November 2020 and are expected to receive formal shielding notifications shortly. If they cannot work from home, employees who are advised to shield should not attend work and will be eligible for statutory sick pay (SSP).

If clinically extremely vulnerable individuals cannot work from home they could also potentially remain on (or move into) the furlough scheme – see our FAQs on furloughing employees for more on this.  

Clinically vulnerable people who cannot work from home can currently return to work but must take extra care with social distancing. Previous government guidance said they should be “offered the option of the safest available on-site roles” which enable them to stay the requisite two metres (or one metre with risk mitigation where two metres is not viable) from others. Although the most recent guidance no longer suggests they should be offered the safest on-site roles, it would still be good practice as part of the employer’s general health and safety obligations to prioritise the clinically vulnerable for the safest roles over anyone who is not vulnerable.

We consider that either remaining on furlough, working from home or taking unpaid leave is currently the cautious approach for vulnerable employees if they are unhappy about returning to work, given the legal risks:

  • You owe a duty of care towards vulnerable employees and, as the government guidance says, this may involve taking “extra” care. Failure to enforce additional precautions could result in a claim for negligence. Remember also that you will be vicariously liable for the negligence of your employees, some of whom may act in a thoughtless or irresponsible way.
  • Many vulnerable employees will also qualify as disabled for the purposes of the Equality Act. This means they have the right to reasonable adjustments, which could potentially include staying at home (but we don’t believe that this would extend to a right to stay at home on full pay if they cannot work from home).
  • It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to return to work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come back to work if, for example, other employees could cover their role or you could recruit temporary cover.

What if the employee is classed as clinically vulnerable or clinically extremely vulnerable and they want to come to work but we are too wary of the risks and we’d like them to remain at home?

If you have a clinically vulnerable, or extremely vulnerable, employee who wants to return to work but you would prefer them to remain at home, the legal position is different.

If they have agreed to be on furlough, then you can require them to keep to this agreement until the end of the furlough scheme. Once any agreed furlough period comes to an end, unless you agree something else, usually a salaried employee who is ready, willing and able to work would be entitled to full pay if you required them to stay at home. 

There is a potential exception if you have an agreed lay-off provision in the employment contract which entitles you to lay the employee off without pay (although these are quite rare), or if the employee is a casual worker who is not entitled to be provided with any work.

Remember that you will need to continue to take steps to safeguard your employee’s mental health and wellbeing, which may be suffering if they want to return to work but are not allowed.

What if the employee lives with a vulnerable person?

You do not owe a duty of care to people who live with your employees. The government guidance says that those living with clinically extremely vulnerable individuals who are not clinically extremely vulnerable themselves can still attend work if they cannot work from home.

However, those household members could well be disabled for the purposes of the Equality Act and there is a concept of associative discrimination which could potentially be relevant here. UK law currently only prohibits direct discrimination against an employee because of their association with a disabled person. This covers situations where, for example, an employer treats someone worse because they have a disabled child than they would have treated them if their child was not disabled. This kind of associative discrimination would not be relevant to Covid-19 situations.

However, there is an anomalous and surprising decision of the European Court of Justice which suggests that associates of a disabled person might be able to claim indirect discrimination if they are affected by a provision, criterion or practice that puts disabled people at a disadvantage. (The case concerns a claim for indirect race discrimination made by an individual who did not share the disadvantaged group’s race). This judgment has not yet been applied in the UK and we do not know what the UK courts would make of it given that the wording of the Equality Act does not appear to enable a claim to be formulated in this way.

Aside from employee welfare concerns, there may therefore be legal reasons why you might want to let some employees remain on furlough or unpaid leave or continue working from home if they are very worried about the risks to somebody they live with. In our view, however, they would not be entitled to paid leave in these circumstances.

What if the employee is pregnant?

Pregnant employees are treated differently than other vulnerable people and may have a greater claim to being allowed to remain at home on full pay, if they are not already on furlough or working from home.

Pregnant women with heart disease have been included in the list of clinically extremely vulnerable individuals who must not work. All other pregnant women have been included in the list of clinically vulnerable people as a precaution and have been advised to be particularly careful about safe distancing, because the risks to them remain unclear.

As the employer, you have to assess the specific risks to pregnant employees and, where these are identified, you must do all you can to prevent or remove them. It may be possible to do this by taking extra precautions to enforce safe distancing in the workplace. The current guidance does not say that vulnerable employees can never be asked to work, and this includes pregnant employees. It is a matter for your own risk assessment and whether you are confident that you can provide a safe workplace.

If you cannot ensure safe working conditions, you need to temporarily alter the pregnant employees’ working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend the employee on full pay. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people.

What if the employee has anxiety or a similar condition which impacts on their ability to come to work?

Employees in this category could be kept on furlough or allowed to continue working from home. If you require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay under your usual policies.

Even if they are not signed off sick, employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave or working from home.

What if employees are unable to come to work because they have no childcare?

The four main options where employees have no childcare available are:

  • Remain on furlough.
  • Continue working from home.
  • Employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of four weeks’ parental leave per child).
  • Employees have a right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants. This would include a situation where the school or nursery has not reopened for their children, their childminder is not working or their usual reliance on grandparent care has been disrupted. Under normal circumstances, the employee would be expected to put in place alternative care arrangements, rather than having a right to an extended period of time off to look after their children themselves. In the current circumstances, we expect ETs to be sympathetic to employees who are genuinely struggling to find suitable childcare in the short term. The prime minister has also stated that, if people do not have access to childcare, he regards that as an “obvious barrier to their ability to go back to work”.

We don’t need or can’t accommodate all our employees – how do we choose which employees should come to work?

We advise that you start by exploring who would be willing to come to work.

If too many employees volunteer, you may need to implement a rota system or make selections on an objective basis. If you are implementing a rota system, try to match employees with the same team each time they come into work and split employees into smaller, contained teams if possible. You also have the option of flexible furlough, where employees can return to work part-time and remain on furlough for the rest of the time (see our FAQs on furloughing employees for more information).

If not enough employees volunteer, you may need to have a mandatory system, but it will generally be safest if you can avoid calling on employees who have particular reasons for being unwilling to return (as described above) and allow them to work from home if possible or leave them on furlough or other types of leave if possible.

If employees are still on furlough, and you are selecting just some of them to come back, remember that employees who are unhappy about being kept on furlough (because, for example, they are on reduced pay) could raise grievances about not being selected. Equally though, where employees on furlough are receiving 100% of their pay, it may be difficult to incentivise those who are returning to work.

If employees are unwilling to come back to work, can they stay on furlough?

We think so, yes. There is a concern that it might be seen as abusing the furlough scheme to keep an employee on furlough when you have work they could potentially do.

However, we think it is legitimate to keep clinically vulnerable employees or carers on furlough for the time being, even if you might otherwise have asked them to return. For HMRC audit purposes, however, you should ask for information to verify that they are unable to work (even if this is more information than you might ordinarily ask for).

The position is less clear-cut for employees who are simply worried about the risks of working or commuting, although we think the risks are low if you only need some employees to come back and you are prioritising volunteers.

For more details, see our FAQs on furloughing employees.

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances © Lewis Silkin LLP 2020

 

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