Returning to Work in the midst of the COVID-19 Pandemic

The current Pandemic feels like a rollercoaster, with multiple waves and fast changing circumstances – one minute people are being told to stay at home wherever possible, then encouraged to eat out to save the economy, before coming full circle and people being instructed to work from home if they can. It has been difficult to keep pace for individuals and businesses alike.

An employer has a duty to provide its staff with a safe and secure workplace, this is embedded within Health and Safety regulations. Accordingly, the minimisation of the risk of contracting COVID-19 in the workplace is now at the forefront of this duty. We have no doubt that this is not a simple task and most employers have conducted workplace risk assessments and taken huge strides in protecting staff.

However, we have also noted that there are employees who remain concerned about returning to work, especially those who can work from home, for a variety of reasons. Where possible, it is usually desirable for an Employer to open a dialogue with such an employee to attempt to understand any concerns they have and what steps can be taken to deal with this situation. Unfortunately, such dialogue does not always result in an agreed conclusion – in those situations an Employer needs to weigh up whether it has taken all reasonable steps to ensure the safe return of staff to the workplace and balance those steps against the representations made by any dissenting staff.

Employers should be mindful that there may be employees who have underlying health issues or other medical concerns – either affecting themselves directly or involving people living in the same household. These could be difficult conversations to have, especially when such issues may not have been a problem in the workplace previously, but now take on a different dimension due to the COVID-19 landscape and can be particularly relevant when it touches upon people’s commute into work. These are considerations that should form part of the workplace risk assessment. A blanket requirement for all employees to return to work without consideration of some individual needs could be risky for an employer as it may lend itself to a risk of inadvertently discriminating against employees with disabilities, as defined by the Equality Act 2010. Such discrimination could arise in a number of ways:

• indirectly, by requiring employees to return to work but failing to account for health conditions;
• directly, by failing to consult with an employee who suffers from a health condition that places them at a higher risk; and/or
• by failing to make reasonable adjustments for an employee with a disability – by way of example someone using public transport may feel it is safer to travel at less busy times of the day and therefore want flexibility over their working hours whenever they have to travel into the office. Likewise, if companies have car parking spaces they may have to make them available to a wider group of staff as driving in will generally be seen as a safer way to commute compared to using public transport.

We have no doubt that these are difficult considerations for any employer. Our Employment Law Team at Anthony Gold are well versed at navigating employment legislation and current regulations and guidance around Covid-19. Couple with our commercial approach, we will offer unique support that will seek to ensure that your business is protected and looked after efficiently and effectively.