As the furlough scheme draws to a close and the Government is urging employees to return to work, businesses must take steps to ensure that their workplaces are “COVID-19 secure”. Whilst these steps are essential, it is also important that the measures taken are clearly communicated to employees.
Although many workers are keen to return to the buzz of the office, others are hesitant to return to a workplace where they may be exposed to COVID-19. Those who have health conditions that make them vulnerable or who live with or care for elderly relatives may be particularly concerned and may even refuse to return to work.
Employers who fail to make their workplaces “COVID-19 secure” may face an automatic unfair dismissal claim if they dismiss an employee who leaves or refuses to attend work because he / she “reasonably believed” there is “serious and imminent” danger.
However, even employers who have made their workplace safe could face a claim if they have not clearly communicated this to their employees, so communication is key.
The case of Mr S Edwards & Others v The Secretary of State for Justice demonstrates that the information received by an employee is relevant in determining whether they have a reasonably held belief that their working conditions are unsafe.
The Claimants in this case were eight prison officers at HMP Dartmoor who refused to be transported to work on a road that had been closed following heavy snowfall. Although the prison had an adverse weather assessment checklist in place, which required them to request special permission from the police to use the road if safe to do so, the prison officers were not aware of the terms of this risk assessment. As such, the Judge found that the Claimants’ belief that they faced “serious and imminent” danger may have been entirely reasonable based on the information (or lack thereof) received from their employer.
Whilst that case did not relate to COVID-19, the same principles will apply.
If employees returning to the workplace are not informed of the steps taken to keep them safe from COVID-19, it may be reasonable for them to believe that they face “serious and imminent” danger. Dismissing an employee who is reluctant to return to the office in such circumstances would, therefore, be risky.
What does this mean for you or your business and what should you be doing now?
It is not enough for employers merely to conduct a risk assessment to ensure that workplaces are “COVID-19 secure”. Employees must be informed of the steps taken to minimise risks and be given the opportunity to raise any concerns they might have.
The Government is currently advising that employees can return to their workplaces providing that arrangements are made for them to work safely. In the first instance, if employees are reluctant to return to the workplace, employers should consider whether it is possible for them to work from home. If this is not possible, and the measures taken to make the workplace “COVID-19 secure” have been clearly communicated to staff, employers should consider the specific reasons for the employee’s reluctance to return to work and find a solution where possible. For example, this may involve discussing flexible start and finish times with employees concerned about using public transport at peak times or proposing alternative duties to vulnerable employees in public facing roles. It may also be appropriate to suggest a period of unpaid leave if the parties cannot come to an agreement.
If you do want to initiate disciplinary action leading to dismissal, seek advice before doing so to minimise your risk of a claim.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.