Returning to Work During COVID-19 : UPDATE
As the beginning of June approaches, many people will be returning to work in the coming weeks. We have compiled some of the most common questions and answers below.
Who is entitled to go back to work in June?
People should continue to work from home wherever possible. If it is not possible for them to work from home and their workplace is open and they work in food production, construction, manufacturing, logistics, distribution or scientific research they are expected to travel to work and attend the workplace.
From 1 June 2020, outdoor markets can reopen and sell any items, including non-essential. Car showrooms may also open. From June 15th, non-essential retail (excluding businesses in the hospitality and personal care sectors) will also be permitted to re-open provided that it is safe to do so and as long as the retailers follow the Government’s COVID-19 Secure Guidelines in relation to making their place of business safe. This includes measures such as ensuring staff can work from home wherever possible, carrying out a health and safety risk assessment and consulting with staff, providing and implementing enhanced hygiene and cleaning procedures, maintaining 2m social distancing where possible and reducing the number of people they have contact with. A link to the Government’s sector relevant guidelines can be found here:https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.
I’m worried about contracting COVID-19 in my workplace, can I refuse to go back to work and still claim furlough pay?
It is the employer who claims wages via the Government’s Coronavirus Job Retention Scheme (or at least 80% of wages up to a maximum of £2,500). It is, therefore, up to the employer to decide which employees should be on furlough leave rather than it being a choice available to the employee. Employers should only furlough employees in appropriate circumstances in accordance with the Coronavirus Job Retention Scheme. If employees have concerns about contracting COVID-19 in the workplace, they should discuss these concerns with their manager/HR in order to get a better understanding of what health and safety measures are in place. Employers have a duty of care towards staff which includes ensuring a safe working environment. Employers are also expected to follow the Government’ s sector relevant guidance in relation to measures employers should be taking in the workplace in order to work safely during the COVID-19 pandemic: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
Employers should also be wary about forcing employees back to work if they have genuine concerns as this could be considered a breach of the implied term of trust and confidence and result in a potential claim for constructive unfair dismissal or, in the case of some vulnerable individuals, disability discrimination. Wherever possible, concerns should be discussed with the employee and employer and solutions put in place to alleviate concerns.
Do I need to go back to work even though I am currently caring for dependants?
If the workplace is open (and you cannot work from home) you will be expected to return even if you are caring for dependants and even though schools have not yet opened. However, anyone categorised as an essential worker will be able to send their children to school/nurseries as per the current arrangements. In addition, some schools and nurseries are opening from 1 June 2020 for specified year groups. Dependants leave is available for emergency childcare but usually only for a short period, e.g. 2 days. If returning to work is very difficult, you can speak to your manager/HR about the possibility of taking a period of unpaid leave and/or holiday or agreeing a temporary flexible working arrangement (with hours which fit around childcare) until childcare is more readily available.
Am I entitled to COVID-19 testing now that I am being asked to return to work?
You can apply for a test if you have symptoms (or live with someone who has symptoms) if (a) you have been asked to go back to the workplace because you cannot work from home or (b) you are classed by the Government as an “essential worker” (e.g. NHS staff, police, teachers, social workers, those involved in food production/sales).
I own a manufacturing/building company, do I have to send my employees back to work or is it up to my discretion?
The Government guidance states that sectors of the economy which were allowed to open from 13 May 2020 should open and this includes manufacturing and construction. However, employers should bear in mind their obligations to ensure a safe working environment for employees, to follow the Government guidance on safe working practices during the COVID-19 pandemic, and, accordingly, put in place appropriate H&S measures. The Government have issued specific advice for the construction industry in its guidance: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
In cases where demand for services or workflow has decreased and there is not enough work for the whole of your workforce it is possible to keep or, indeed, put employees on furlough leave in appropriate circumstances (with their agreement) under the Government’s Corona Virus Job Retention Scheme.
If I can work from home, should my employer be asking me to return to work?
No, the current Government guidance states that if it is possible for you to work from home then you should continue to do so.
Can I take annual leave to avoid going back to work?
Yes, subject to getting approval from your employer in line with their policies and procedures and having sufficient holiday entitlement.
Do I need to go to work if I/a member of my household is classed as a vulnerable person and has received a 12-week isolation letter?
Employers have a duty of care towards employees and should, therefore, support any vulnerable employees who have been told to isolate for 12 weeks. If you and/or a member of your household is vulnerable yet you are being asked to go back to the work place, you should discuss your concerns with your employer and try and agree a way of working. For instance, it may be possible to agree home working arrangements, alternative duties which can be done from home, specific adjustments to the workplace to enable maximum isolation, a period of furlough leave (if appropriate) or unpaid leave.
As above, employers should also be wary about forcing employees back to work if they have genuine concerns as this could be considered a breach of the implied term of trust and confidence and result in a potential claim for constructive unfair dismissal or, in the case of some vulnerable individuals, disability discrimination.
I’m going back to work next week, how should I know what I should and shouldn’t be doing?
Where ever possible, you should continue to maintain social distancing measures. Your employer should also have in place appropriate health and safety measures and updated guidance on working practices during the COVID-19 pandemic (for instance, they may provide you with PPE or install glass protectors if your role is customer facing). You should speak to your employer if the guidance is not clear or if you have any concerns about health and safety. The Government has issued sector relevant guidance to employers about the measures employers should be taking in the workplace in order to maintain a safe working environment during the COVID-19 pandemic. https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
Do you have any further questions? Proelium Law is here to help you. We are continuing to work during this difficult period. Call or email us if you have an enquiry, we will call you back at a time convenient for you.
Sinead Keenan is a Consultant Solicitor at Proelium Law LLP specialising in employment law. Sinead has over 7 years experience working in private practice advising both companies and employees on a wide range of employment law matters.