From pay cuts to PPE and refusing to go in, a lawyer answers important workplace questions
As part of the government’s phased plan to get the economy back on track, employers in now have more freedom to decide whether staff should return to their place of work.
Unsurprisingly, people are concerned about this: the change is anxiety-inducing for our mental health as well as potentially being a risk to our physical health.
All UK businesses that ask their staff members to return to work have been informed they need to undertake a risk assessment and put in place various measures to protect their staff from contracting the coronavirus, but life after lockdown still holds many questions, and as an employee, you are entitled to working rights. We asked Laura Kearsley, partner in Nelsons’ employment law team, to answer some of the most pressing questions and concerns we may have on returning to work due to the coronavirus.
Returning to work – employees’ questions answered:
1. My employer is re-opening my workplace, but I am concerned there isn’t space to maintain social distancing. Do I have to go back to work if I am concerned for my health and safety?
The government is urging employers and employees to discuss concerns they might have and approaches to ensuring that workplaces are safe. The government has issued extensive guidance for employers to ensure that workplaces are ‘Covid-19 secure’ and this includes completing a risk assessment.
Employees should offer suggestions to their employer if they think there are other measures that could be taken to protect the workforce. We recommend trying to maintain an open dialogue so employees can get reassurance that their safety is being taken seriously.
Ultimately, if you do not attend work because of safety concerns, your employer could treat your absence as unauthorised and follow its disciplinary process.
Employees do have legal rights not to be dismissed for raising health and safety claims but in the current climate, it would be preferable to try everything to resolve the situation without resorting to litigation, which could take many months.
2. I have colleagues that don’t adhere to the social distancing rules at work – what shall I do?
Make your employer aware straight away and they should deal with this issue, potentially under the disciplinary policy.
3. I have had a further letter from the government advising me to continue shielding yet my workplace has re-opened. What will my employer do?
You should not return to work if you have been advised by the government to shield. This will apply only to those in receipt of a letter, who are in the extremely vulnerable category.
If you can work from home, you should continue to do so. If you cannot work from home, you will need to agree with your employer how they will deal with your absence from work. You are potentially eligible to be furloughed if they will agree to this and can access the Coronavirus Job Retention Scheme (CJRS).
4. My partner is in a high-risk category, can I refuse to go back to work?
Those who have family members that are at greater risk from Covid-19 will understandably be concerned about returning to work. You should discuss your concerns with your employer and they should consider whether you can work from home, whether you can be furloughed or whether you can be reassured that your workplace is safe for you and your family.
5. My workplace has re-opened but my children can’t go back to school yet, where do I stand?
If you don’t have childcare, returning to work might not be an option for you. You can discuss with your employer whether you can be furloughed (or remain on furlough for now) or whether you can work from home in some capacity.
6. Should my employer provide me with PPE?
There is no blanket requirement that all employees who attend work need PPE. The guidance is specific to different industries/sectors and generally, if social distancing can be maintained, PPE will not be compulsory. You should discuss any specific concerns or requirements with your employer.
7. I have raised concerns with my employer that I don’t feel safe returning to work but they aren’t listening, what else should I do?
If you don’t feel your concerns have been addressed, you can consider whether to contact the Health and Safety Executive (HSE) about your concerns. It is the government body with responsibility for safety in the workplace and can take enforcement action against employers who are lacking.
8. Can my employer ask me to take a pay cut after returning to work?
Broadly speaking, an employer can ask an employee to take a pay cut, but the employee can refuse. If the employer imposes the pay cut without the employee’s agreement, they will be in breach of contract. An employee can respond to this in one of three main ways:
(1) Waive the breach by carrying on working for less pay.
(2) Continue working ‘under protest’ and bring a claim for breach of contract or unlawful deductions from wages.
(3) Resign and claim constructive dismissal.
9. How much notice should I be given that I have to return from furlough leave?
‘You should be given any required period of notice specified in the furlough agreement between you and your employer. If no period of notice of notice was specified, your employer ought to give you reasonable notice. Depending on the circumstances, this could be as little as a day or two. Guidance published by ACAS states that employees should be ready to return to work at short notice, but employers should be flexible where possible.’
If you are in a dispute with your employer, you could also consider contacting ACAS, the government body that conciliate employment disputes.