From 1st August, government guidance will change and instead of the message being ‘work from home if you can’, employers will have more discretion to ask employees to return to the workplace if it is safe to do so.

All UK businesses that ask their staff members to return to work have been informed they need to undertake a risk assessment and put in place various measures to protect their staff from contracting the coronavirus. However, despite this, many employees are still concerned about returning to work.

Laura Kearsley, partner in Nelsons’ expert employment law team, answers some questions and concerns that employees may have on returning to work due to the coronavirus.

Can my boss make me come back?
“If you have been asked to return to work then you will be deemed to be absent without authorisation if you don’t show up. You are unlikely to get paid for this and it may also be considered a disciplinary offence.

“Employees do have a right under health and safety rules to protect themselves from danger, but it will be much more reasonable to discuss concerns with your employer and seek reassurance rather than just failing to attend.”

What measures should my employer be taking to keep me safe?
“Employers should ensure employees are observing the one metre plus social distancing rule. They should also implement one-way systems to minimise contact and adopt frequent cleaning regimes.”

My employer is re-opening my workplace, but I am concerned there isn’t space to maintain social distancing. Do I have to go back to work if I am concerned for my health and safety?
“The government is urging employers and employees to discuss concerns they might have and approaches to ensuring that workplaces are safe. The government has issued extensive guidance for employers to ensure that workplaces are “Covid-19 secure” and this includes completing a risk assessment.

“Employees should offer suggestions to their employer if they think there are other measures that could be taken to protect the workforce. We recommend trying to maintain an open dialogue so employees can get reassurance that their safety is being taken seriously.

“Ultimately, if you do not attend work because of safety concerns, your employer could treat your absence as unauthorised and follow its disciplinary process.

“Employees do have legal rights not to be dismissed for raising health and safety claims but in the current climate, it would be preferable to try everything to resolve the situation without resorting to litigation, which could take many months.”

I have colleagues that don’t adhere to the social distancing rules at work – what shall I do?
“You should make your employer aware straight away and they should deal with this issue, potentially under the disciplinary policy.”
I have been shielding, can I refuse to go back to work?

“From 1 August, those in shielding categories are no longer required not to attend work. Therefore, this will not be a valid reason for you or members of your household not to attend work. You should discuss any concerns with your employer as they may be able to reassure you about measures in place.”

My workplace has re-opened but I don’t have childcare yet, where do I stand?
“If you don’t have childcare, returning to work might not be an option for you. You can discuss with your employer whether you can be furloughed (or remain on furlough for now) or whether you can work from home in some capacity.

“The Prime Minister has urged employers to protect parents and guardians that can’t return to work but there is no strict legal protection in place for anyone in this position.”

Can I ask to continue to be furloughed?
“Furlough requires the agreement of both parties (employer and employee), so employees would need to seek agreement from their employer for any period of furlough to continue. Employers will have to contribute to the costs of furloughed staff from 1 August, so they are less likely to agree to do this – especially if they have work for their staff to do.

“If workloads have not picked up or employees have childcare issues, employers can consider continuing furlough or moving to flexible furlough instead, so it’s worth discussing this with your employer.”

Should my employer provide me with PPE?
“There is no blanket requirement that all employees who attend work need PPE. The guidance is specific to different industries/sectors and generally, if social distancing can be maintained, PPE will not be compulsory. You should discuss any specific concerns or requirements with your employer.”

I have raised concerns with my employer that I don’t feel safe but they aren’t listening, what else should I do?
“If you have raised concerns with senior management but you don’t feel they have been addressed, you can consider whether to contact the Health and Safety Executive (HSE) about your concerns. It is the government body with responsibility for safety in the workplace and can take enforcement action against employers who are lacking.

“If you are in a dispute with your employer, you could also consider contacting ACAS, the government body that conciliate employment disputes.”

For more information on employee rights in the workplace, visit  www.nelsonslaw.co.uk/employee-rights. For the latest government advice on coronavirus,  visit  www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

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