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Coronavirus – FAQs on staffing decisions when reopening workplaces

23 September 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. 

The latest position is as follows:

  • The government has also published FAQs for people in England about what you can and can’t do in the light of the new measures. Section 5.1 deals with who is allowed to go to work and repeats the wording of the announcement. The guidance to employers on workplace safety has not yet been updated to reflect the new advice on working from home.
  • It is not clear if the government intends to impose a legal requirement on employees to work from home, as it did when homeworking was first imposed in spring 2020. Until 1 June it was an offence for employees in England to leave home for work unless it was not reasonably possible for the work to be done at home. Since then, the position as regards homeworking has been a matter of government guidance rather than regulation.
  • From 28 September, the government has announced that employers must not knowingly require or encourage someone who is being required to self-isolate to come into work.
  • The furlough scheme is now closed to employees who haven’t been furloughed before and will close entirely on 31 October 2020. As of 1 July, employers have been able to bring employees back to work part-time under the flexible furlough scheme and so have more choice about how to manage the workforce as restrictions ease.

Our office-based employees started to come back to the office before the latest guidance about working from home. What should we do now?

The latest government announcement states that, to help contain the virus, office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so.

This is a reversal of the earlier guidance, which was that office-workers could start to return if the workplace was made Covid-secure.

Employers will need to re-consider their plans and what they are asking their office workers to do. 

You would be going against government guidance to ask employees to come to the office if they could work effectively from home, and you would not be able to enforce a requirement to work in the office in these circumstances (because it would be difficult to justify disciplining an employee who was complying with the guidance).

However, if workers need to go to the workplace to do their job effectively then you will be able to continue to ask them to come in. Under the previous regulations, workers were required to work from home “if possible”. Under the latest guidance, however, the key question is whether working from home is “effective” rather than “possible”. There is no further guidance on what “effective” means in this context but it implies that workers can be asked to come in if working from home is possible in theory but ineffective in practice. This suggests that the government potentially envisages a greater population of office workers coming to the office during the winter compared to during the national lockdown phase.

If you will be allowing or asking employees to keep coming  to the office then you should continue to ensure that your workplace is Covid-secure, that you are doing everything possible to reduce the risk of transmission and that you have a clear process for employees to raise concerns. These steps will be especially important since employees whose jobs can only be done in the workplace may raise issues about safety and the behaviour of colleagues who they do not perceive as “needing” to be in the office.

For more practical guidance on how to mitigate risks, see our table.

Some employees have enjoyed coming back to the office – can they still work in the office if they want to?

It is not currently an offence for an employee to come to work (see the latest position above). However, this would be against government guidance if the employee could work effectively from home.

The published announcement is broadly drafted and allows for an employer and employee to take a joint judgement call about whether the employee needs to come to the office. There is currently no detail on what sort of reasons would justify a decision that an employee cannot work from home effectively.   This could potentially encompass employees who are simply not productive or able to work normally at home - for example, because they are more distracted or need to use office equipment - as well as those with unsuitable accommodation or mental health issues.

The latest guidance envisages that employers will consult with employees and make a joint decision about who has a good reason to come into the office and who should now stay at home.

If an employee can work just as effectively from home but had started to come in to the office for other reasons, such as for a change of scenery or to meet socially with colleagues, then the guidance is clear that they should now work from home.

We found that productivity significantly  improved when employees started to return to the office. Can we ask them to keep coming in?

Some employers found employees to be more productive at home, whereas others found that productivity dropped or that some types of work was not being done effectively on a remote basis. If you have found that some employees genuinely do need to be in the office to do their jobs effectively then you will be able to ask them to keep coming in.

The key question, as explained above, is whether the work can be done “effectively” from home. This does not seem to be a question of where the employee is most effective, but rather a question of whether the employee is not able to perform their normal duties effectively from home. There is no additional government guidance on this difficult issue, and we may see Employment Tribunal cases if an employee disputes an employer’s assessment that they need to be in the office to perform their role effectively. Employers should consider what data they have to support any assessment of effectiveness.

If only some employees are needed in the office then you can reduce legal risk by being careful about which groups you call on to come in. The safest approach is to rely on volunteers only. After that, you will reduce legal risk if you avoid calling on anyone who is Covid-vulnerable or lives with someone who is Covid-vulnerable. It may also be reduce your legal risk if you avoid calling on employees who rely on public transport.

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

The government has confirmed that as of 17 July, everyone can use public transport for any reason, although people are still encouraged to use other modes of transport if available. 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 return to work if they are reliant on public transport and if they could otherwise remain working from home or on furlough. For more guidance on this issue, see our Insight 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 back 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. We would caution against doing this in most cases. 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.

The best approach currently is likely to be to continue furlough or put them onto unpaid leave - employees who are not able, ready and willing to work are not entitled to pay – while continuing to take practical measures to support their mental health and wellbeing.

The furlough scheme will end on 31 October 2020 and for employees who cannot work from home remaining on unpaid leave may become unsustainable. In those circumstances it may be appropriate to consider termination of employment. As the situation develops and more employees return to work, it may also become safer for you to take disciplinary action.

Employers should be aware that the government has released a online risk assessment tool for employees to use to check if they should go back into work, which links to the health and safety guidance for employers when re-opening workplaces.

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 (who have been advised to shield themselves) and those who are clinically vulnerable.

From 1 August, the general advice to shield for those who are clinically extremely vulnerable no longer applies and these individuals will no longer be entitled to SSP if they remain at home. The latest government guidance says they can return to their workplace, providing Covid-secure guidelines are in place, but should work from home wherever possible.

If clinically extremely vulnerable individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2 metres, or 1 metre with risk mitigation if 2 metres is not viable). Much of the government guidance says that it may be appropriate to consider alternative roles or temporarily adjusted work patterns for them but there is some confusion between the different sector-specific guides (see our article The clinically extremely vulnerable can now return to work – or can they?” for more details).

If clinically extremely vulnerable individuals cannot work from home they could also potentially remain on furlough – see our FAQs on furloughing employees for more on this.   

There is specific advice for those who are clinically extremely vulnerable if there is a local lockdown in their area.  

The government safer travel guidance for passengers still advises clinically extremely vulnerable people not to travel if they cannot shield during their journey.

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, which instead should be offered to any clinically extremely vulnerable individuals, 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 a better approach for vulnerable and extremely 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 on 31 October. 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 well being, 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. 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.

The government guidance for who should be going to work also suggests employers pay “particular attention” to people who live with clinically extremely vulnerable individuals.

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”.

What if we are not ready to open but employees want to come back and say they cannot work effectively from home?

Some workplaces remain legally required to close meaning employees in those businesses clearly cannot return. However:

  • If you are not legally required to close your business, you can choose to reopen your workplace but you should not do so before being satisfied that it is safe - see our FAQs on managing a safe return to work.
  • The decision to reopen the workplace is for the employer to make. 

It may take you some time to get ready to open. If the employee is currently on furlough, check the terms of your furlough agreement. If the employee has agreed to remain on furlough until, for example, the end of the furlough scheme or until you recall them to work, then you can hold them to this agreement and keep them on furlough until you are ready to recall them.From 1 July 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 – but you are not obliged to do this (see our FAQs on furloughing employees for more information).

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.  From 1 July 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.

From 1 July, the furlough scheme has changed to allow employers to bring employees back on ‘flexible furlough’ - paying staff for any part time work they do whilst they remain on furlough for any time work isn’t available. Employers now have more choice with regard to assessing their workforce needs and can leave some employees on full furlough whilst bringing others back on a flexible furlough basis.

Employers should note that the furlough scheme requires employers to contribute to the furlough grant employees receive in increasing amounts from August – regardless of whether flexible furlough is used or not.

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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