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Return to work from Covid closed workplaces
Covid unlocking. How do employers handle this when its recommendations rather than rules?
This week we see an end to the general restrictions which have been gradually melting away over the past months. However you personally feel about it, the approach of using recommendations rather than rules leaves a certain lack of clarity for employers faced with a multitude of concerns from employees.
It must be pointed out that if a system currently used by an employer, be it working from home or otherwise, is working, then there is no pressing need to change anything subject to providing a safe system of work.
Safe system of work
Every employer must provide a safe system of work for employees, and that system must be safe from risks presented by Covid in the same way it must be safe from risks of falling or electrocution for example.
Therefore, every employer must be able to show that they have considered the risks posed by Covid and introduced measures to bring those risks to an acceptable level. This level will differ from employer to employer and employee to employee. This must be the starting point.
Employees who don’t wish to come back to work
We are already seeing questions arising as a result of employers wishing to see a return to the workplace and employees who do not wish to do so. In broad terms the employer should have the right to instruct a return to the workplace.
The last 12 months or more have been exceptional. Unless there are truly unusual circumstances, it is our opinion that a move to working from home over the pandemic did not create a permanent change of contract. This was accepted by all as a temporary move, of uncertain duration, that was expected to come to an end. Therefore, we do not believe there is an argument to say that the contract changed, unless the employer expressly said it did.
Employers return to work checklist
- Have you performed a risk assessment for Covid. This is a good first step.
- Implement measures identified by the risk assessment.
- Inform staff what those measures are
- Invite staff to highlight whether there is any reason why those measures are inadequate.
- Give a period of notice of the intention to return to the workplace.
Staff may have a vulnerability that is personal to them. They may have an illness which makes Covid worse for them, or that means they cannot get vaccinated.
Where this applies, special care must be taken to identify the circumstances and how any risk can be reduced. Consult fully with the employee, and don’t force matters until you have explored all options. Steps that might be considered could include the requirement of other staff to be vaccinated.
Consider referral to an occupational health specialist if greater understanding of the condition is required.
Where no reasonable steps can be taken to bring the risk down, then you must consider whether continued home working is viable. If it is, then its best to allow it.
If home working is not viable, and this may be quite a high threshold in this case, then dismissal may be considered.
Such a dismissal will always be a risky dismissal. This is because it is probably linked to a disability and therefore will require justification.
Requiring steps which may be unpopular
Certain steps might be considered that are unpopular or are resisted by staff. That may be that staff must wear masks, have windows open or even be vaccinated.
Most measures will be within the employer’s reasonable discretion. The employer will be free to insist on a measure if it is part of their safe system of work. The one exception to this is insistence on vaccines.
Vaccination is a very difficult topic, and it must be remembered that what a person allows into their body is very much up to them. An employer cannot force a vaccination and most won’t want to. There will however be occasions when a vulnerable employee will be at risk from colleagues if they are not vaccinated (or at least a higher risk) and the employer may consider mandatory vaccinations for those working at the workplace as a way to protect the vulnerable employee.
Where an employee in these circumstances (or similar such as care work) refuses to have a vaccination, then consider the following steps. Can the risk be reduced another way? Is it possible that either the refuser or the vulnerable employee could work from home on a continuing basis? If there are no such measures, then a balancing exercise must be undertaken weighing the rights of the refuser, with the rights of the vulnerable. Ultimately dismissal may become appropriate where all other avenues have been exhausted.
Requests to work from home
Such a request (made in the face of a return to the work place) is perfectly within an employee’s right to make, and must be considered in a reasonable time frame.
It is wise to invite the employee to meet, and discuss the reason for the request and ensure that the request is clear in terms of what is being requested in terms of time, location, frequency etc.
Requests then may be granted, and at the point it becomes a permanent change of contract, or refused on a limited number of grounds, such as inability to meet demand under the proposed arrangements for example.
In the end
The key thing to remember is the need to provide a safe system of work. Measures this firm has introduced which may help are:
- Windows are to be opened when a person enters, so as to create a through draft if possible.
- Masks are to be worn when not sat at your work station
- Hands are to be sanitised every time a person leaves their desk
- Client meetings organised by Zoom where possible
- Client files are to remain with one employee and not transferred between staff
- Home working can continue on certain days only
- Normal pay continues if advised to isolate by NHS
This is not an exhaustive list, it is just an indication of what this firm has done to protect its own staff. These measures were introduced after discussion of the staff and agreement for their need.