Government demands employees return to work – but not just yet

Government have changed their advice on telling employees to return to the workplace due to a spike in virus infections.

The government was urging employees to start working normally, plus including special health measures in the workplace, but since 22 September are telling employees to work from home if they can.

The government is changing their advice after a spike in infections that led to  medical experts fearing that cases could go to 50,000 a day by mid-October.

Government estimates that In six months’ time, when infections return to a manageable level, they will be able to tell employees to return to the workplace and follow their health safety advice.

Consultation process

Employment law advice will include the Advisory, Conciliation and Arbitration Service (ACAS) telling employers that employers can reduce the risk of providing  grounds for unfair dismissal by including trade unions, employees and health and safety representatives in the consultation process.

Employers should also check any agreements they have with unions or employee representatives about formal consultation. Employment legal advice recommends employers check their employee’s employment contracts to clarify the rights of both parties.

ACAS’ good practice advice recommends discussion about:

• – when employees return to the workplace
• – whether a return will be phased
• – how staff travel to work
• – reviewing health and safety in the workplace
• – changes to the work environment to promote health and safety
• – changes to the working hours, and
• – arrangements for working from home.

Discrimination and employment tribunals

The Equality and Human Rights Commission (EHRC) warns employers about making decisions that could lead to a discrimination employment tribunal case. Without employment law advice, decisions about who returns to the workplace, who gets extra hours and job redundancies could result in unlawful treatment of employees based on ‘protected characteristics’.

Protected characteristics involve the sex of an employee, race, age, disability and other factors. The EHRC provides an example of a manager asking a mother working from home to check in with him more than a male employee because she has children to look after.

Employers should record their decision about subjects such as who is asked to return to work, job redundancies, furloughs, unpaid leave, changing the environment and flexible working.

The Government also calls on employers to follow its advice about ‘COVID-19 secure’ to ensure that the workplace is safe. Employers should come to pragmatic agreements about the workplace after consultation.

If an employee believes that the employer is not doing enough to make the workplace COVID-19 secure, they can report this to their local authority or the Health and Safety Executive. Further, section 44 of the Employment Rights Act 1996 protects an employee who refuses to return to work because of a fear for his health and safety.

Photo credit: ILO News