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James Winterbottom, Solicitor, explores the position regarding returning to work in the midst of the Covid-19 pandemic.

Following the Government’s announcement that the lockdown is to be lessened from 14th May 2020 onwards, including that those workers who are unable to work from home can return to work, many people have been left wondering what it means for them.  Whilst the furlough scheme may be extended, remember that this is for the employer to utilise so the decision rests with them as to whether to keep staff on furlough, not the actual workers.

The key question really is: can someone’s employer force them to return to work?

In the daily press briefing today, 13th May 2020, the Government’s advice was that people begin having conversations with their employer about a return to work. This is sensible as this is not a “one size fits all” situation: some jobs may be relatively safe to return to, such as those where the employee does not interact with other people very much throughout the day; other jobs might require a lot of face-to-face interaction, including with the public.

The law requires all employers to undertake a risk assessment (Regulation 3 of the Management of Health and Safety at Work Regulations 1999) and from that risk assessment to then determine what steps they need to take to protect employees.  Those steps may include physical distancing, such as desks being relocated, glass/plastic screens between workers (and/or between workers and the public), rotated shift patterns, PPE being provided, and more.  The law also states that if work is not safe with the PPE that is available then the entire system of work needs to be changed (Morgan v Lucas Aerospace Ltd).  Further, PPE is always to be considered a “last resort” i.e. to be used only when the risks cannot be fully controlled through other means (though it can of course complement other measures e.g. if the risk cannot be fully controlled with say distancing measures, PPE could be used in addition in order to further lower the risk to an acceptable level).

returning to work after covid-19

The law also requires employers to continuously monitor and evaluate their risk assessments and protective measures to determine whether they are effective or not, as well as ensuring PPE is worn and remains effective (for example, masks may require regular replacement, which employees will need to be advised about, and the safe usage of the PPE carefully monitored).

Employers also have a legal duty to consider vulnerable employees and to factor such vulnerabilities into their risk assessments and protective measures.

My view is that, provided an employer has carefully considered and acted upon their legal obligations as above, they would be reasonably safe in requiring employees to return to work.  I stress however that there would need to be a fluid approach: the situation would need to be carefully monitored; one or two infections could rapidly spread throughout the workforce leading to unnecessary injury and even death.  I take the view that an employer that either takes no protective action, or perhaps a very minimal approach, would be at significant risk of being found to have acted negligently.

Lastly, I would add that anyone who has been advised to shield themselves, either on Government advice or that of a healthcare worker, cannot be compelled to return to work and no disciplinary or other action could be taken against them in such a situation.

If you would like to discuss any of the issues raised in this article please feel free to telephone on 0800 999 6661 or e-mail: info@astonknightsolicitors.co.uk.

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