Employee FAQ’s – returning to work

The government guidance remains that all employees should be encouraged to work from home unless it is impossible for them to do so. Not everyone can work from home: certain jobs require people to travel to, from and for their work – for instance, to operate machinery, work in construction or manufacturing, or to deliver front line services.

As per our previous update, we are receiving lots of employee enquiries in response to the governments updated guidance regarding COVID-19 and the concerns surrounding returning to the workplace.

We have set out below the most common employee enquiries of this kind that we are receiving at the moment:

I am afraid of returning to the workplace due to fear of contracting the virus – what should I do?

The general position is that if an employee refuses to attend the workplace without a reasonable basis, the employer could start a disciplinary process for refusal to follow management instructions and unauthorised absences.

It really depends on an employee’s individual circumstances. Employees should not go to the workplace where they are advised to stay at home under existing government guidance E.g.they or a member of their household have symptoms of COVID-19, where asked to stay at home under the test and trace service even if they have no symptoms or if they have a disability which puts them at high risk of serious illness if they catch COVID-19.

Speak to your employer and invite them to address your concerns. Considerations for the employer include whether the employee has a medical condition that requires accommodation, whether the workplace can be modified to address the employee’s fears, whether the employer can provide additional safety precautions and also whether working from home is possible.

 

I do not want to return to work due to Health and Safety concerns – can my employer withhold my wages or dismiss me?

Under the Employment Rights Act 1996 (“ERA”), there are certain circumstances in which an employee has the right not to be subjected to any detriment or dismissal by an employer.

It is possible that an employee’s refusal to attend work due to a belief that they will be at risk of contracting COVID-19 could be protected under section 100 of the ERA.

Section 100(1)(d) protects employees from dismissal on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger). The concept of ‘danger’ could include the risk of contracting COVID-19 but the danger would need to be reasonably believed to be serious and imminent.

An employee would still be entitled to pay – withholding pay from an employee who refuses to attend work due to a reasonable belief that they are in serious and imminent danger in the workplace could amount to a detriment on the grounds that they refrained from attending work on this basis.

 

I am afraid of attending work due to my commute – can my employer withhold my wages or dismiss me?

It is not clear at this stage whether employees have the same protection if they have reasonable Health and Safety concerns regarding their commute as they do with Health and Safety concerns about the workplace. In these circumstances it would highly depend on the facts of the individual’s circumstances and whether the ‘danger’ is one which the employee could not reasonably be expected to avert.

Speak to your employer about alternative travel arrangements – alternatives may include cycling to work, subsidised parking to enable employees to travel in their own cars or shifted working hours so that a commute does not have to be within peak time on crowded public transport. If these alternatives are available, then employees may not be entitled to the same protection.

If, however, these alternatives are not available and an employee is entitled to refrain from attending the workplace on this basis without suffering detriment or dismissal then it is arguable that they should continue to be paid because again withholding pay on the basis that they refuse to attend work may amount to a detriment.

 

Can I refuse to return to work due to childcare issues?

Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. Employees in these circumstances may assert their right to time off to care for a dependant. This time off, however, is generally unpaid and due to the impacts of the virus possibly lasting for quite a while longer this would not be a long-term solution for most employees who will need some form of income.

Employees could instead consider talking to their employer and request to work flexibly so that where possible they can split the childcare with the other parent, so that both parents are able to continue working part-time.

Another alternative for parents would be to use their annual leave towards time off for childcare. Speak to your employer about what the best option would be for you to take at this time.

 

Disclaimer

  • Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
  • The information in this guide is correct as of 27th May 2020.

All information provided should be read alongside the relevant Government Guidance at

https://www.gov.uk/flexible-working-and-ACAS-guidance

https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html

We hope you have found this note useful and if you do have any queries please get in touch with one of our Employment Law Solicitors

 

Marie Walsh
Director, Employment Solicitor and Mediator
Direct Dial 0113 8874670
Mobile 07736252681
Reception: 0113 3229222
Address: 4 Park Place, Leeds LS1 2RU


Victoria Horner
Senior Associate
Direct Dial: 01138874673


Andy Boyde
Employment Solicitor
Direct Dial: 0113 323 0346
Mobile: 07595 520 508


Emma Cartlidge
Employment Solicitor
Direct Dial: 0113 8874674

 

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