Which employees in which sectors may return to work and why? Will Boris’s comments impact how staff feel about being at home on furlough leave on 80% pay? When can an employee refuse to return to work? Who should continue to work from home? And when should an employer consider disciplining an employee who has a valid H&S concern relating to Coronavirus? These are just a few of the questions employers are now asking.
Health & safety protection of employees is already enshrined in law. Employees who carry out certain H&S related actions or activities are protected not just from being dismissed unfairly but also protected from being subjected to a detriment. Employers need to steer clear of taking inappropriate action against those raising genuine H&S concerns and make sure staff know how the employer would like any such concerns to be raised. Employers will, in due course, want to be aware of any guidance issued by Government or HSE for their sector. It may also be useful for employers to consider circulating guidance to employees to help them understand what steps have been taken to mitigate H&S risks of Coronavirus at work.
Whistleblowing protections have also been in place for some time. Raising a H&S concern or even a concern about how personal data relating to the health of a worker has been processed, may also be a disclosure protected by whistleblowing legislation. As such both workers and employees may have legal recourse depending on the circumstances.
Returning workers may ask for different working arrangements, for example to take into account the fact they live with or care for a person who is shielding or with someone who is pregnant or who has child care responsibilities. Discrimination claims are a risk unless the employer has a clear and consistent policy in place for dealing with changes to working patterns.
Employers will need to tread carefully when considering whether or not it is appropriate to start disciplinary procedures against employees who decide not to turn up to work, deduct pay or even take the step of dismissing an employee.
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Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.