This is a fast-moving issue and should be read as correct at the date of publication (20.05.20).
On 11 May 2020 the UK Government published its Covid-19 recovery strategy, including a roadmap for lifting the lockdown.
As part of this new approach, the Government is ‘encouraging’ workers in England to go to work if they can’t from home. The Government also published guidance on working safely during Covid-19 for eight types of work.
However, there have been no changes to existing health and safety law or the lockdown rules in relation to work.
This Insight outlines what the law says and how it interacts with the new Government guidance.
What did the Government say?
The Government’s Covid-19 recovery strategy says that workers should continue to work from home “wherever possible.” Cabinet Office guidance says: employers should make every effort to enable home working. However, the recover strategy says that those who can’t work from home, “should travel to work if their workplace is open.”
As public health is devolved, this approach only applies to England. Scotland, Wales and Northern Ireland have their own rules and have all said they are not currently encouraging people to go back to work.
Has the law changed?
No, at least as far as the rules on work are concerned.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the equivalent devolved legislation, make it an offence for a person to leave or be out of their home without a “reasonable excuse.” It is already a reasonable excuse to go to work if work cannot be done from home. This is not limited to ‘key workers’.
The Regulations also require businesses in some sectors to close their premises except for certain activities. The recovery strategy says non-essential retailers will not re-open until at least June and the hospitality sector will not re-open until at least July. Businesses in these sectors can currently only open for certain activities, such as food delivery.
What health and safety measures must employers take?
Employers must do everything that is “reasonably practicable,” to ensure safety in the workplace. This includes:
- Undertaking a risk assessment
- Setting up safe systems of work, informed by the risk assessment
- Implementing the safe systems of work
- Keeping the systems of work under review
Legislation sets out steps that employers need to take as part of this, including cleaning and ventilating the workplace and controlling the spread of viruses. Where other measures do not sufficiently control a risk, employers must provide personal protective equipment (PPE).
The new Government guidance on working safely does not take the place of this legislation. It is simply guidance on the sorts of steps employers can take to comply with health and safety law in the context of Covid-19. It is ultimately for employers to make their own assessments.
Barristers at Cloisters Chambers, among others, have suggested the Government guidance might be weaker than the law when it comes to the duty to provide PPE.
Can workers refuse to go to work?
All workers have an obligation to follow lawful and reasonable instructions given by their employers.
However, under the Employment Rights Act 1996, an employee cannot suffer a detriment or be dismissed if they leave or refuse to attend the workplace because they reasonably believe there is a serious and imminent danger that they can’t avoid. Employees are also protected if they take reasonable steps to protect themselves or others from imminent danger.
The term ‘danger’ has been interpreted broadly. What matters is whether the employee reasonably believed there was a danger, regardless of whether the employer disagreed. An employee’s right to take steps to protect ‘others’ is not limited to other workers. For example, this might include refusing to go to work to protect a vulnerable person in a worker’s household.
Whether, in the context of the pandemic, an employee could refuse to attend the workplace will depend on the facts.
While an employer’s compliance with Government guidance will likely be a relevant factor, it may not be decisive. Other factors, such as a worker’s health, the health of their households or possibly even risks from public transport might be relevant.
The position will not be the same for all workers. The Government guidance says that workers who are ‘clinically extremely vulnerable’ should not be require to attend work. Those who are ‘clinically vulnerable’ can go to work but only if they can maintain two metres social distancing. Pregnant workers have a legal right to be suspended on full pay if they can’t work safely.
What about workers with caring responsibilities?
The recovery strategy says that schools could start to open in June but it will be a phased return. This could cause problems for working parents.
While employees have a right to a ‘reasonable amount’ of time off for dependents, this is usually for emergencies and is unpaid. While workers with caring responsibilities could ask to take annual leave or to be furloughed, this is a decision for the employer.
The Prime Minister told the House of Commons that having children would be an “impediment” to working and that employers should “recognise” this.
Barrister Rachel Crasnow QC has noted that as childcare responsibilities fall disproportionately on women, employers would need to ensure that their policies do not unlawfully discriminate on the basis of sex.
Can employers keep workers on furlough?
While the Prime Minister has said that workers should be “encouraged” to go to work, he did not suggest that the rules on the Coronavirus Job Retention Scheme (CJRS) have changed.
Under the CJRS, employers can furlough workers and claim for 80% of their wages (up to £2,500 per month) from HMRC. Employers can furlough employees because of a “circumstance arising as a result of coronavirus.”
The Chancellor recently announced that the CJRS will be extended in its current form until the end of July and in a more flexible form until the end of October.
Employers whose work has reduced may choose to keep some or all of its workforce on furlough. However, this is a decision for the employer. An employer can tell a worker to return to work if it is in accordance with their employment contract and any furlough agreement.
Coronavirus: Returning to work, House of Commons Library
Coronavirus: the lockdown laws, House of Commons Library
Coronavirus and health and safety dismissals: a guide, Gus Baker (Outer Temple Chambers)
About the author: Daniel Ferguson is a researcher at the House of Commons Library, specialising in employment and equality law.