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This is a fast-moving area and the paper should be read as correct at the time of publication (06.01.2021).

In late March 2020, the UK Government and devolved administrations made legislation to impose lockdowns in response to the COVID-19 pandemic. These rules prohibited people from going to work unless it was not reasonably possible to work from home.

The rules have changed over time and were relaxed over the summer. England, Scotland, Wales and Northern Ireland are all currently under strict national lockdowns.

Lockdown laws and guidance

There are a number of circumstances where a person may be prohibited from going to work by public health legislation (lockdown laws) or public health guidance, including:

  • Those who are able to work from home;
  • Those who are required to self-isolate;
  • Those who are required to quarantine (self-isolating after travel);
  • Those who are extremely vulnerable to COVID-19 (shielding);
  • Those whose workplace is required to close.

Public health is a devolved matter and the rules can vary across the UK.

The whole of England, mainland Scotland and Wales are currently under the highest level of restrictions (Tier 4, Protection Level 4 and Alert Level 4) where people are legally prohibited from leaving their home without a reasonable excuse. It is a reasonably excuse to go to work but only if it is “not reasonably possible” to work from home (England), “not possible” to work from home (Scotland) or “reasonably necessary” (Wales).

The Northern Ireland Executive has announced that it will also be re-introducing a legal obligation not to leave the home without a reasonable excuse. The Executive’s guidance already says that people should work from home if they are able to do so.

When deciding whether to ask workers to go to work, employers will also need to consider other legal obligations under health and safety and equality law.

Workers who are unable to go to work may be able to work from home or, alternatively, may be eligible to be furloughed under the extended Coronavirus Job Retention Scheme.

Health and safety

Employers have to follow a range of health and safety legislation. The Health and Safety Executive (HSE) publishes approved codes of practice and guidance on health and safety law. In summary, employers have to:

  • Undertake a risk assessment;
  • Set up safe systems of work, informed by the risk assessment;
  • Implement the safe systems of work; and
  • Keep the systems of work under review.

The UK Government’s guidance on working safely during COVID-19 does not replace existing law. Rather, it provides examples of the sorts of measures an employer might take in order to comply with existing legal obligations in the context of COVID-19. There is equivalent guidance in Scotland, Wales and Northern Ireland.

Refusing to go to work

All workers have an obligation to obey lawful and reasonable instructions given by their employer. However, employees who refuse to attend the workplace because they reasonably believe that there is a serious and imminent danger have certain protections under employment rights legislation. The protections also apply if an employee takes steps to protect others from such danger.

Whether an employee has a reasonable belief will always depend on the facts. The fact that an employer is complying with the Government’s working safely guidance will be a relevant factor, although other factors, such as the employee’s vulnerability to COVID-19 will also be relevant.

The Government’s working safely guidance says that there are certain workers who should not be asked to attend the workplace, such as those required to self-isolate.

Employers must ensure that the measures they adopt do not discriminate on the basis of protected characteristics, including age, sex, disability and pregnancy.

Health and safety law offers special protection to new and expectant mothers who must be suspended on full pay if they cannot be offered work that is safe.

Issues

Some issues have arisen with the approaches to returning to work, including:

  • The prospect that disagreements will arise between employers and employees over whether it is safe to go to work. Workers who live with or care for vulnerable people may also be concerned for their safety. The Advisory, Conciliation and Arbitration Service (Acas) say that these disagreements will be best addressed by discussion between employers, employees and health and safety representatives.
  • Employees who refuse to go to work because of reasonable fears about serious and imminent danger are protected from detriments or dismissal. However, it is unclear whether this covers those who have fears about the safety of their commute.
  • As public health is devolved, businesses in Scotland, Wales and NI will need to operate in accordance with the relevant devolved lockdown legislation and government guidance. Meanwhile, health and safety law is not devolved in Scotland and Wales. Ultimately, employers must undertake their own risk assessments and take account of all available guidance.
  • Schools are being closed again across the UK, which will create increased childcare responsibilities for parents. While employees do have a right to emergency time off for dependants, the time off does not need to be paid. While workers with caring responsibilities could ask to be furloughed, this is a decision for their employer.

Whistleblowing

Employment law offers a range of protections to whistleblowers who make ‘protected disclosures’. However, there are detailed rules on what sorts of disclosures qualify for protection. The disclosure must relate to a particular subject matter and must be made to one of a number of groups of people listed in legislation. This includes the Health and Safety Executive, local authorities and MPs. There are additional tests if a worker makes a disclosure to someone not listed in the legislation, like the press or on social media.


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