Returning To Work After Covid Restrictions Lift On 19th July
On Monday 12 July, Prime Minister Boris Johnson confirmed the plan to go ahead with the final stage of the roadmap, with the easing of Covid-19 restrictions taking place in England on 19 July. To summarise the final stage of the roadmap, most of the current legal restrictions in place will be lifted with all businesses being permitted to open without Covid-19 capacity restrictions. Decisions such as social distancing and mask wearing will be a matter for businesses and individuals to decide for themselves.
During the various lockdowns the government advised that, where possible, those who can work from home should work from home. The requirement to work from home will end from Monday 19 July, however, the government “expect and recommend” the process of returning to work after COVID restrictions lift on 19th July to be gradual, and that those who are able to work from home continue to do so over the summer season.
We are already seeing situations where some people do not want to be returning to work after Covid restrictions lift on 19th July because they are worried . This has inevitably led to various issues for employers including staff shortages, as well as making them unsure how to act and making them potentially vulnerable to claims being made against them in an employment tribunal.
Reluctant employees
It is advisable for employers to have all Covid-19 risk assessments and safety measures available so that they can be shared with any employees who are reluctant about returning to work after Covid restrictions are lifted Clearly explaining the measures in place, and why the workplace is as Covid-19 safe as possible, may be sufficient to give reluctant employees the comfort they need to return to the work.
Some employees may be less concerned with their place of work but are more concerned with their commute on public transport. Employers have no control over the safety measures on public transport but one course of action that could be taken is to discuss a temporary adjustment to the employee’s start and finishing times. This could allow the employee to avoid peak times on public transport. Employers could also consider temporary arrangements such as subsidising car parking costs until the current wave has reduced and/or the employee in question has received full vaccinations.
There may be the situation where employees simply refuse to return to work despite the employer informing them of all health and safety measures and after discussions about temporary adjustments to hours etc. This situation presents difficulties and creates the potential for employment disputes which may, in the fullness of time, reach the employment tribunal.
If an employee refuses to attend work without good reason then they are potentially liable to no pay and dismissal due to misconduct. When considering whether to dismiss an employee it is vital for employers to consider whether the dismissal may be unfair.
Unfair dismissal
For an employee to make an unfair dismissal claim to the employment tribunal they need to have been continuously employed for two years, unless it is automatically unfair. For an employer to fairly terminate the employment of an employee with more than two years’ service it must have a fair reason. There are five potential ‘fair’ reasons that an employer can rely on:
- Conduct – normally this relates to poor behaviour and misconduct;
- Capability – an employee being unable to perform their role fully (missing targets, etc.) or being medically incapable of performing their role;
- Redundancy;
- Statutory restriction – an employee can be dismissed if it would be unlawful for them to do their job (for example a professional driver loses their driving licence); and
- Some other substantial reason.
Health and safety detriments and dismissals
Employees who raise significant health and safety concerns can have legal protection if they are subjected to a detriment (no pay for example) or are dismissed because of their health and safety concerns. With respect to dismissal claims, employees do not need two years’ complete service to make such claims to an employment tribunal.
Where employees raise serious health and safety concerns and choose to remove themselves from work or not return to work “in circumstances of danger which the employee reasonably believes to be serious and imminent” they will have protection.
To be successful in a health and safety unfair dismissal claim an employee would need to prove to an employment tribunal that they had a reasonable belief of serious and imminent danger of returning to work after Covid restrictions were lifted. This is a subjective test which looks at whether the employee in question held the reasonable belief. It is not enough for the employer to say that objectively such belief could not be reasonably held.
First instance case law has suggested that the existence of Covid-19 alone will not be enough to satisfy the test of reasonable belief. If the employee cannot show that they have a reasonable belief of serious and imminent danger, they will have no legal right to request continue to work from home or refuse to return to the workplace for health and safety purposes. The existence of detailed Covid-19 risk assessments and policies and discussion with the employee to understand their concerns may go some way in demonstrating to an employment tribunal that the employee did not reasonably hold their belief that in returning to work after Covid restrictions were lifted that they were being placed at serious and imminent risk of danger.
Disability discrimination
The Equality Act 2010 provides the definition of a disability as:
- A mental or physical impairment;
- Which is long term – it has or will last for more than 12 months; and
- The impairment has an adverse effect on day-to-day activities – which must be more than minor or trivial.
It could be that an employee refuses to return to the workplace because they suffer depression and anxiety, which is made worse by the prospects of returning to the work after Covid. Anxiety and depression constitutes a mental impairment and, if it were found to be long term and having adverse effects on an employee’s day-to-day activities, the employee would be deemed to be disabled for the purpose of the Equality Act 2010. Note that two years’ minimum service is not required for cases of discrimination.
Where an employee is disabled, an employer has a duty to make reasonable adjustments to elements of the employee’s role (this could include changes to their working environment or working hours) which causes them a substantial disadvantage because of their disability. Failure to make such reasonable adjustments can constitute disability discrimination. The emphasis here is on the word reasonable. Just because an employee requests an adjustment does not mean that they are automatically entitled to it and an employer will have a defence if it can prove that the adjustment was not reasonable.
In addition to a claim for failure to make reasonable adjustments, should an employee be dismissed for refusing to attend the workplace due to their disability, then they might have a claim that they have been treated unfairly for something arising from their disability. However, an employer could have a defence if they can show that their actions (for example commencing the capability procedure and/or dismissal) were a proportionate means of achieving a legitimate aim.
In other words, if there were no reasonable adjustments available and an employer is able to demonstrate that they adequately considered reasonable adjustments or alternative approaches to the issue, they would be able to demonstrate that the only viable option was commencing the capability procedure and/or the employee’s ultimate dismissal.
Comment
Should an employer be faced with the scenario where an employee refuses returning to work after Covid restrictions have been lifted, it is always advisable in the first instance to try and understand the root cause of the employee’s reluctance and to address any concerns raised in regards to health and safety. An example of meeting these concerns could be to accommodate flexible working requests on either a temporary or permanent basis, or allowing them to take holiday or unpaid leave.
It is also advisable that employers have detailed risk assessments in place to help reassure employees that the workplace is a safe working environment and operates in accordance with government advice in lowering the transmission of Covid-19. Should a claim be made in the employment tribunal then risk assessments will help evidence that necessary measures were taken by an employer, as well as assisting an employment tribunal judge in determining whether an employee’s belief that they were in serious and imminent danger was reasonable.
If faced with a reluctant employee, our advice would be try to understand their concerns and work with the employee to see how they may be overcome. We would advise caution and not jumping to conclusions or hasty disciplinary action. The emergence of the Delta variant of Covid-19 may heighten the concerns of those employees already worried about returning to the workplace.
Should you require advice in relation to reluctant employees or would like to discuss any of the issues within this article please call the employment team on 01752 203500 or email either Rob Zacal (robert.zacal@GAsolicitors.com) or Kayleigh Arthurs (Kayleigh.arthurs@GAsolicitors.com).