28 May 2021
Employers | Managing a return to the workplace
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Katie Bowen Nicholas, Employment Law Solicitor at Hegarty Solicitors discusses key points employers need to consider when making the transition back to the workplace.
Employees who have been working from home since the start of the pandemic or have been furloughed may feel anxious about returning to their place of work and employers have a 'duty of care' to reasonably support their employeesâ health, safety and wellbeing which includes making sure the working environment is safe, protecting staff from discrimination and carrying out risk assessments.
New legislation came into force on 31st May 2021 that offers protection from detrimental treatment for workers who refuse to go to work because of health and safety fears. Previously this protection was only afforded to employees, however the introduction of the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, means that those classified as workers are now entitled to this protection.
The legislation does not give workers an absolute right to refuse to return to work, should they possess a âreasonable beliefâ that they (or others) would be in serious or imminent danger, but the onus lies with the employer to show steps taken to mitigate against the risk of any perceived threat.
In March, the Employment Tribunal in Rodgers v Leeds Laser Cutting found that the employee who refused to return to work until lockdown restrictions were lifted because he believed his workplace posed a âserious and imminentâ danger to his children, had been fairly dismissed. The judge deemed the evidence provided by the employee as âvagueâ and âcontradictoryâ and the tribunal found that he could have followed guidance put in place in the workplace around social distancing and hand washing.
However, employers should not assume that similar cases will fail, and they should ensure that requests to return to the workplace during the Covid-19 pandemic are reasonable and that adequate safeguards have been put in place to reduce risks and follow guidance. Employers are advised to talk to employees and workers who have concerns about returning to the workplace and, if these are valid, to make adjustments where possible, as any employee or worker who has a reasonable belief that their workplace poses a serious and imminent risk, based on evidence about Covid-19 available at the time, will be protected.
To speak to Katie Bowen Nicholas about any aspect of Employment Law please call 01733 295 672 or email katie.bowennicholas@hegarty.co.uk.
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