Coronavirus: Returning to work

This is a fast-moving area and the paper should be read as correct at the time of publication (16.08.2021)

In late March 2020, the UK Government and devolved administrations made legislation to impose lockdowns in response to the Covid-19 pandemic. People were prohibited from going to work unless they could not work from home. At times this rule has been set out in legislation and has been mandatory while at other times it has been set out in guidance and has been advisory.

Lifting lockdown restrictions

On 19 July 2021, the UK Government moved England to Step 4 and lifted most coronavirus-related legislation. The guidance on working from home was also lifted, although the Government says employers should ensure a “gradual” return to the workplace over the summer.

On 7 August, the Welsh Government moved Wales into Alert Level 0 and lifted most coronavirus-related legislation. However, the Government says working from home will likely be a “reasonable measure” employers are legally required to take to reduce the risk of the spread of Covid-19.

On 9 August, the Scottish Government moved Scotland into ‘beyond level 0’ and lifted most coronavirus-related legislation. The guidance on working from home was also lifted, although Government says working from home is an “important mitigation” that will reduce the risk of the spread of Covid-19.

In Northern Ireland, lockdown legislation remains in force and the Executive continues to advise people to work from home where possible.

Health and safety

Employers have to follow a range of health and safety legislation. The Health and Safety Executive 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 UK Government’s new guidance on working safely during Covid-19 sets out steps businesses can take to ensure their workplace is safe as restrictions are lifted. The guidance lists risk assessments, ventilation and cleaning as the key measures businesses should be taking.

The guidance does not have any special legal status and does not replace an employer’s existing legal obligations. It is for employers to carry out a proper risk assessment and identify the steps they need to take to protect their staff.

There is equivalent guidance in Scotland, Wales and Northern Ireland.

Vaccinations

The UK Government has created the NHS COVID Pass to allow people to show their vaccination or other Covid status (negative test or natural immunity). The Government has not legislated to require businesses to make the Pass a condition of entry. However, the Government has suggested that nightclubs and other large venues may be legally required to check the Pass from the end of September. The Government has also legislated to make vaccination a condition for working in a care home from 11 November 2021.

If an employer decides to ask their staff for proof of vaccination, they must comply with existing legal obligations under employment law, equality law, data protection law and human rights law. An employer that dismisses an employee who refuses to be vaccinated could face a claim for unfair dismissal or indirect discrimination. Such cases will always turn on the facts.

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 appropriate steps to protect themselves or others from danger.

Whether an employee has a reasonable belief will always depend on the facts of the case. There are now a number of Employment Tribunal judgments in cases concerning employees who raised concerns about Covid-19. In many of the cases employees have not had much difficulty establishing a reasonable belief of serious and imminent danger. However, there are indications that a general fear of Covid-19 may not be enough, especially if the employer was following the Government’s working safely guidance.

Flexible and hybrid working

Employees are no longer legally required to work from home. However, many employers are considering adopting new ‘hybrid working’ arrangements that allow employees to split their working time between home and the office. This will usually need to be agreed between the employer and its staff.

Employees who have worked for their employer for 26 weeks can make a request for flexible working. Employers are required to deal with the request in a reasonable manner. Requests can be refused for a number of reasons listed in the legislation, including cost or impact on quality or performance.

Whistleblowing

Throughout the pandemic a number of workers have raised concerns about the safety of their workplace or public health more widely.

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 the legislation. This includes the Health and Safety Executive, local authorities and MPs. There are additional requirements if a disclosure is made to someone not listed in the legislation, like the press or on social media.