Life was simple before 10 May. The government’s “Stay at Home” message meant that most people had little reason to venture out of their homes except to walk that dog that had mysteriously grown on the end of their arm or to sate that sudden urge to take up jogging.

This certainty ended abruptly when the message changed to “Stay Alert” and workers were encouraged to return to their workplaces if “safe” to do so. This small semantic shift has created significant difficulties for employers upon whose already laden shoulders has been placed an additional burden of ensuring that returning employees are not exposed to risk of Coronavirus infection.

Predictably, social media abounds with the talk of “risk assessments” – the decades old first line of defence against any allegation of harm caused in the workplace. However, as many employers are now discovering, it is not just about adapting the workplace to ensure a 2 metre distance between work stations or procuring a bountiful supply of sanitisers. It is much more to do with protecting the needs of individual employees who fall into one of three categories: “Clinically Extremely Vulnerable”, “Clinically Vulnerable” and “Everyone else”. Whilst guidance is available to help determine which medical condition falls into which category, there is very little guidance on the practical steps an employer can take. Identifying the “safest available role” to which a vulnerable worker may be invited back to the workplace may pose little problem where individual office space exists, but what about small offices, factory units and workshops? The situation is further complicated when the employer is expected to factor in not only the worker’s own status but also the status of anyone in his household or for whom he cares.

Employers are already facing objections from employees claiming not to be “comfortable” returning to work and it is essential for them to quickly separate those who merely wish to stay in their pyjamas from those with very real concerns about health risks not only about the workplace itself but also the journey there and back. For those with genuine cases, employers will do well to (a) commission an immediate work place risk assessment if they haven’t already done so to identify particular areas of risk; (b) familiarise themselves with the Government guidance on the categories of vulnerability; (c) assess each worker’s circumstances individually and decide whether it is safe for them to return.

If the employer is not satisfied that it can ensure a worker’s safety, it may be possible to place them on the furlough scheme (assuming they are an employee) but bear in mind that the purpose of the furlough scheme is primarily job protection. It is not an enhanced sick pay scheme and so employers who use the scheme purely for the latter purpose may well be subject to investigation and clawback by HRMC once the crisis subsides. The default position would be to treat such employees as being on sick leave, subject to company/statutory sick pay rules.

But what of those with no valid reason to avoid returning to work? Technically, they may face dismissal for unauthorised absence. However, employers would do well to think twice before taking such action as existing laws include protection against dismissal or other detrimental treatment where an employee refuses to return to his place of work in circumstances of danger which he reasonably believes to be serious and imminent. As the immediate crisis eases and few employers will have the budget or appetite to do battle in the employment tribunal and so compromises must surely be made.

This blog was written by:  Mark Higgins

DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.

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