Reopening the workplace after COVID-19: Considerations for employers

With government guidance on the full easing of lockdown and the possible return to the workplace being extended by 4 weeks to 19 July 2021, employers now have a little more time to consider and implement their reopening plans. Employment partner David Jepps offers his guidance on the most pressing questions that employers need to consider when reopening their workplace.

What are the most important preparations businesses can implement to ready themselves for reopening the workplace?

The number-one priority for all businesses that are reopening the workplace is to ensure that it is COVID-secure. Naturally, what precisely needs to be done to prepare your workplace will vary but the “less is more” approach is not a prudent way to plan for reopening. The more preparation that can be done in advance, the more prepared your business will be.

Employers should therefore undertake and update workplace risk assessments, maintain or adjust workspaces, and organise any necessary PPE that may be required as far in advance as is possible.

Secondly, communicate with employees about the upcoming changes. Once your business has determined how many employees are really needed at the workplace, talk to staff about planning for their return. Start this process sooner rather than later because many employees will be very anxious about returning to the workplace. Those who joined during the pandemic may need induction and there could be a need to re-induct the rest if the nature of the workplace or working patterns have changed significantly.

Ending the default position that employees should work from home where they can does not mean that everything should immediately revert to how it was pre-COVID, and many employees may have concerns about the return to work. The earlier you communicate your plans and any changes, the easier it will be to mitigate against any problems.

Be ready for flexible working claims. Employees with six months’ service have a legal right to request flexible working. Whilst the request can be refused on specified grounds, there are procedures to be followed and risks of discrimination claims. Try to think ahead and agree working patterns with employees if possible. If there is likely to be friction, take advice as soon as possible.

Businesses should also consider a staggered return to the office and “hybrid working” too – where some work is still done from home. This can mitigate against the drastic shock of completely changing working patterns overnight. It could also help manage numbers in the workplace where the physical space limits how distanced staff can be from one another.

Can an employee refuse to go the workplace once it has reopened?

Employees cannot be forced to come to work but the starting position is if they do not turn up for work, then they do not get paid and they would normally be in breach of contract.

If an employee refuses to come to work, unpaid leave can be agreed or whilst the furlough scheme is still in place and subject to the rules of that scheme, it might also be possible to keep certain staff on furlough. These arrangements could help if employees are reticent to return to work before they are fully vaccinated or until COVID infection levels have fallen further.

But if the employer really needs the employee at work and the employee’s not wanting to return can no longer be “parked”, it could be a conduct issue if an employee refuses to come in. As a result, this could lead to disciplinary proceedings, which in turn could lead to dismissal.

Where an employee has more than two years’ service, they have unfair dismissal protection. This means that if the employee makes an unfair dismissal claim to an employment tribunal, then to escape liability, the employer must prove that there was a fair reason for dismissal and that it was reasonable to dismiss for that reason.

Not attending work without permission will be a fair “conduct reason” but in determining if it is reasonable to dismiss for misconduct, an employment tribunal would look at the bigger picture and consider whether there were any viable alternatives to dismissal.

At the very least, employers will have to try to engage with employees and seek a solution. This might be by providing more PPE or by locating the employee in a quieter, more spacious part of the office. If the employer can furlough the employee, it might be unreasonable not to continue with that.

Each case will turn on its own facts, but employers will need to make time to seek a solution with employees. Where they have the two years’ service, they cannot just be fired. There needs to be a proper process, otherwise the dismissal will be unfair.

Can employees refuse to return to the workplace if they think it is unsafe?

Section 100(1)(d) of the Employment Rights Act 1996 provides that where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.

Furthermore, there is section 100(1)(e) which stipulates that employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.

These sections apply to all employees – there is no need for two years’ service. Compensation is unlimited and the starting point is that dismissal is automatically unfair. These provisions therefore present a significant risk to employers.

Whilst this is old law, it has generally not been much relied upon before; however, the pandemic is already changing this. What guidance we now have from employment tribunals suggests that the serious and imminent danger requirement must be explicit.

Where an employee will not attend work because of COVID-related fears, it may well not be reasonable to refuse to return, as what would the serious and imminent danger be where the workplace is COVID-secure or if further steps could be readily taken to protect staff?

However, if employees have fears regarding COVID and public transport, then they could potentially be expected to come to work by other means. This is not the responsibility of the employer.

As it stands, given that this is a developing area of the law and there is currently no COVID-specific appeal court guidance, employers must tread very, very carefully and should take specific advice on a case-by-case basis. Employment tribunal cases turn on their own facts and aren’t binding on other tribunals.

There could be some high-profile examples of these cases in the next few months. In order to protect against reputational and financial risk, employers need to be seen to have acted reasonably and to have tried to discuss matters with employees and explored any viable alternatives to dismissal.

It is crucial to engage with employees before dismissing if they will not come to work. In two recent employment tribunal cases, the tribunal found in favour of one employer who undertook extensive dialogue with an employee and justified attendance at work, whereas another employer that entered into no meaningful dialogue at all was left facing an award of approximately £23,500 compensation.

If you have any questions about returning to the workplace, please contact David Jepps.