Emerging from Lockdown

As lockdown rules are gradually eased, thoughts of employers inevitably turn to the question of what needs to be done to ready the workplace for returning staff and what problems this might throw up.

The first thing to consider is whether to have staff back at all; government guidance is still to the effect that if work can be done from home then it should be. Asking staff to return should therefore only be appropriate when work cannot otherwise be done.

Assuming the workplace is to be opened up though, it is important to keep in mind the duties which are imposed on employers. Under the Health and Safety at Work Act, explicit obligations are imposed on employers to protect both employees and non-employees from harm. Failures to comply may lead to criminal prosecutions. Similar duties are imposed through the law of negligence and may lead to claims from staff who suffer injury at work; whether physical or psychiatric. And the Management of Health and Safety at Work Regulations impose an obligation to carry out risk assessments of all workplaces.

Against that background, it will come as no surprise that the first thing an employer needs to do before allowing staff back is to carry out a comprehensive risk assessment to identify the risks involved and how to mitigate those.

There is a wealth of guidance available both about how to carry out this type of risk assessment and the steps which employers should be taking to try to keep workplaces safe. Specific guidance for different types of premises has been issued by the government which is available at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.

Return to work guidance from the government stresses the importance of sharing the results of your risk assessment with staff and then of publishing the final outcome. This contrasts with the strict legal position which is that risk assessments were for internal use only, and that for employers with fewer than five employees they do not even need to be in writing.

The steps needed to mitigate the risks may be difficult to implement and take time, so it is important to start that work now even if you do not plan to re-open yet.

Besides meeting your legal obligations, this work will be crucial in reassuring your staff that it is safe to return. It may be hard for staff who have been furloughed for a long time to adjust to coming back to work, but all staff may be anxious about becoming infected. It will be important to heed their concerns and to show the workplace will be as safe as reasonably possible.

Even so, you may have staff who refuse to come back for fear of infection. This will force you to make difficult decisions. In principle, if an employee refuses to come into work they are guilty of misconduct and may be dismissed. However, the law protects those genuinely concerned about safety by prohibiting employers from dismissing or subjecting to any detriment an employee who refuses to come to work for fear of a ‘serious and imminent danger’ to their safety.

Provided you have followed government guidelines it is unlikely that fear of such a danger would be reasonable. However, acting in haste could have serious repercussions so I recommend that you try to be tolerant if at all possible and take advice before going down a disciplinary route.

Finally, in light of the changed times thrust upon us and the lessons learned, it will be advisable to give all your existing policies a thorough review to test how they stand up in the new world. Most are unlikely to have contemplated all we have been through and are likely to need updating.