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Returning to work and complying with legislation

Posted on 11th May, 2020

It would be fair to say that the Prime Minister’s address yesterday evening has caused some confusion regarding returning to work. Despite the government’s ever-changing guidance, it is important for employers to remember that they are ultimately responsible for complying with employment law, which in the context of returning to work will mean paying particular attention to health and safety, whistleblowing and discrimination legislation.

Employers have a statutory duty under the Health and Safety at Work Act 1974 to take reasonable steps to ensure the health, safety and welfare of staff. At the very least, this will require employers to assess the risks arising from an individual’s return to work and put in place measures to remove or mitigate these. For example, an employer might decide to introduce shift patterns to limit the number of employees on its premises at any one time, or require staff to wear PPE such as facemasks. Although it may appear a lesser concern, the duty also applies to homeworking; employers should ask themselves for each employee: is their equipment set up correctly? Does homeworking present any data protection issues? Are there external factors which might affect their work, for example caring responsibilities? Circulating a homeworking questionnaire might help identify some of these issues.

Given the current uncertainty, employers should anticipate a rise in health and safety concerns and be aware that employees are protected under the Employment Rights Act 1996 from detriment or dismissal for raising these together with leaving or refusing to return to a place of work, or taking appropriate steps to protect themselves, in circumstances of serious and imminent danger. Although such circumstances should be assessed objectively, an individual’s personal circumstances will still be relevant meaning that complaints, particularly those capable of amounting to a grievance, should be taken at face value and investigated. There is a real risk to employers who ignore or fail to deal with a grievance, not only of undermining trust and confidence but also in allowing a resolvable problem to develop into a dispute and take up valuable time and resources.

In addition to entitling an employee to protection from detriment or dismissal, raising a health and safety concern is also likely to constitute a ‘protected disclosure’ in which case the whistleblowing provision of the Employment Rights Act 1996 will apply. Workers, as well as employees, are protected from detriment for making a protected disclosure and these could, potentially, include data protection and other complaints if the disclosure is, in the reasonable belief of the employee or the worker, made in the public interest and tends to show that certain unlawful activities have taken place, are taking place or are likely to take place.

Employers, then, are certainly going to need to ‘stay alert’. If the above issues are not enough, there is the added potential for employers to inadvertently discriminate by taking (or failing to take) action which affects workers with a protected characteristic under the Equality Act 2010.  For example, it may be a reasonable adjustment to allow an employee with a disability who relies on public transport to continue to work from home when their colleagues return to the office; female workers are statistically more like to have childcaring duties which, with schools closed and social distancing preventing grandparents assisting, may put them at a particular disadvantage compared to male workers when it comes to returning to work.

And we’ve not even mentioned ‘furlough’, although as there are likely to be changes to the government’s Coronavirus Job Retention Scheme that is probably a topic for another day (quick reminder, with the scheme currently set to end on 30 June and furlough needing to last at least 3 weeks, as things stand the last day on which an employer can furlough an employee and claim under the scheme is 8 June).

The coming weeks and months may be a difficult time for employers although those that remain flexible, act reasonably and apply common sense will be in a better place at the end of it. Taking advice is recommended so if we can assist you or your business with any employment law or HR matters, however big or small, please do contact us – we will be happy to help.

if you would like to speak to one of our Employment team, call Paul Clark in the first instance on 01642 356500/0191 2322574 or email pclark@jacksons-law.com.

Paul Clark, Partner and Head of Employment

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