This Commons Library Briefing Paper discusses issues relating to returning to work as the Government re-opens the economy. It provides an overview of relevant health and safety law and a discussion of Government guidance on working safely in the context of Covid-19. It also includes a discussion of the positions in Scotland, Wales and Northern Ireland.

Download the full report

This is a fast-moving area and the paper should be read as correct at the time of publication (05.08.2020).

In late March 2020, governments in all four nations of the UK made legislation to impose lockdowns in response to the Covid-19 pandemic.

All four governments have since published Covid-19 recovery strategies, setting out plans for the phased re-opening of the economy. As part of this process, the governments have at various stages been amending legislation and guidance that restricts which businesses can open and which workers can attend the workplace.

They have also each published guidance for businesses on working safely during Covid-19.

‘Return to work’

The shutdown of work came about primarily through two sets of rules:

  • The restrictions on movement and gatherings; and
  • The closure of business premises.

Each of the four lockdown regulations initially made it an offence for a person to leave their house to go to work if their work could be done from home.

In England the legal restriction on going to work was effectively lifted on 1 June and removed entirely on 4 July. However, guidance said that workers should continue working from home if possible. On 1 August the UK Government lifted this guidance, saying that working from home is simply “one way” to operate safely.

The Scottish, Welsh and Northern Irish governments also lifted the legal restrictions on going to work. However, their guidance says working from home is remains the default.

Each of the four governments also had guidance advising those who are clinically extremely vulnerable to Covid-19 to shield at home. England, Scotland and Northern Ireland ‘paused’ their shielding guidance on 1 August. While extremely vulnerable people can now return to work, the guidance says they should work from home if possible. The Welsh Government is keeping its shielding arrangements in place until at least 16 August.

Each of the four governments have lifted most of the rules requiring businesses to close. In England, some restrictions have been retained or re-imposed in local lockdowns. This is discussed in the Library Briefing, Coronavirus: Business re-opening (CBP-8945).

Employers are under no obligation to instruct workers to return and can keep eligible employees on furlough. The Coronavirus Job Retention Scheme is set to remain in place until 31 October 2020, although with employer contributions required from 1 August.

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:

  • 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 working safely guidance, first 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 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, 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:

  • There is a prospect that disagreements will arise between employers and employees over whether it is safe to return to work, especially among those who used to be shielding. In most cases, these issue will be best addressed by discussion, including with health and safety representatives.
  • The protection from detriment or dismissal does not appear to cover employees who refuse to go to work because they 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 regulations 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.
  • While 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.

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.

Download the full report