What does your ‘new normal’ look like? I would love to put a very positive spin on it and tell you that gradually things are returning to normal, however, the reality is quite different. For some of my clients, the transition back to work is not the seamless exercise that we all hoped for. I have employees who don’t like working from home, feeling isolated and, on the flip side, I have employees who don’t want to return to the workplace, feeling unsafe. Both situations require careful handling and there are some complex issues to consider.
I would like to draw your attention to the health and safety provisions under sections 44 and 100 of the Employment Rights Act 1996. I am already dealing with a number of cases relating to this subject that employers should be aware of in the context of COVID-19.
Under the Employment Rights Act 1996 (‘ERA’), employees are protected from dismissal and detriment on a number of health and safety grounds, including if they refuse to attend work due to health and safety concerns. The ERA confirms that the dismissal of an employee due to any of these grounds will be automatically unfair but this is not black and white, we are stepping into unknown territory and surely the emphasis should be whether the employer acts reasonably in the circumstances.
This law has not yet been tested in relation to COVID-19 but the worrying aspect of this matter is that employees may be able to use this if they perceive the workplace to be unsafe. Employers should certainly familiarise themselves with this legislation if they intend to ask employees back into the workplace. I have examples of employees who are refusing to return to the workplace even though the company has implemented robust measures to ensure that it’s a safe working environment. If an employee believes that they are in serious and imminent danger they may be able to build a case, even if it is only their perception. We do not know how this will be interpreted by the courts but if it is just based on the perception of danger, then employers should take advice and proceed with caution to avoid liability.
The Government are keen to get the UK back to work, so we can only hope that they support businesses who are doing their level best to kick start the UK economy.