This Commons Library Briefing Paper discusses issues relating to returning to work following the publication of the Government's Covid-19 recovery plan. It provides an overview of relevant health and safety law and a discussion of recent Government guidance on working safely in the context of Covid-19. It also provides a brief discussion of the positions in Scotland, Wales and Northern Ireland.

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This is a fast-moving area and the paper should be read as correct at the time of publication (18.05.2020).

On 10 May 2020, the Prime Minister addressed the nation to announce the Government’s roadmap for lifting the coronavirus lockdown. On 11 May the Government published its Covid-19 recovery plan, setting out a three step plan for lifting restrictions.

As part of this plan, the Government announced that it was encouraging workers who cannot work from home to go to work. On 11 May, the Government published guidance on how eight different types of work can be undertaken safely in the context of Covid-19.

‘Return to work’

The Government is now encouraging some workers in England to return to work. However, the underlying law has not changed as far as work is concerned.

On 26 March 2020 the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into effect. These made it an offence for a person to leave their house to go to work unless that work cannot reasonably be done from home. This rule has not changed.

In addition, the Regulations require businesses in a range of sectors to close their premises. These rules also remain in place and the Government has said that businesses will not start to re-open until the later stages of its recovery plan.

Furthermore, employers are under no obligation to instruct workers to return. Employers can keep eligible employees on furlough under the Coronavirus Job Retention Scheme. The Scheme was recently extended to cover the period until the end of October 2020.

All the same, the Government’s approach does constitute a marked change in emphasis.

Devolution

The administration of public health is devolved in Scotland, Wales and Northern Ireland. The governments in the three nations have retained their own lockdown rules and have said that they are not yet following the UK Government’s approach of encouraging more workers to go to work.

Health and safety

Employers have to follow a vast and complex body 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:

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

The Government’s guidance, published on 11 May 2020, 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.

Refusing to go to work

All workers have an obligation to obey lawful and reasonable instructions that are 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.

There are still a number of workers who should not be required to attend the workplace. These include:

  • Workers who can work from home;
  • Workers who are clinically extremely vulnerable to Covid-19;
  • Workers who are required by public health guidance to self-isolate.

The Government’s working safely guidance says that while workers who are simply clinically vulnerable can be asked to attend the workplace, they must be given the safest possible roles where they can maintain 2m social distancing.

Employers must ensure that the measures they adopt do not discriminate on the basis of protected characteristics, including age, 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 approach, including:

  • Employment lawyers have questioned whether the UK Government’s working safely guidance properly reflects the legal position on the requirement to provide personal protective equipment (PPE).
  • There is some confusion about the rules that apply to businesses in Scotland, Wales and Northern Ireland. As public health is devolved, businesses in these nations will need to operate in accordance with the relevant devolved lockdown regulations. 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, which will include the UK Government’s working safely guidance and public health guidance issued by the devolved administrations.
  • There is a prospect that disagreements will arise between employers and employees over whether it is safe to return to work. In most cases, these issues will be best addressed by discussion, including with health and safety representatives.
  • As schools remain closed, workers with parental responsibilities may struggle to attend work. 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. The Prime Minister has said he would expect employers to be understanding.

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 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 that must be satisfied if a worker makes a disclosure otherwise than to a person listed in the legislation. These tests would need to be satisfied, for example, if a worker makes a disclosure to the press or on social media.

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