Your rights if you have to go back to work

Expert of the day. Gary Rycroft on your rights if you have to go back to work

Resolver has been inundated with enquiries since the Prime Minister’s speech yesterday about going back to work and your rights.

So we got on the phone to top TV legal expert, Gary Rycroft, and asked him your questions. As with so many things these days, this is an evolving situation, so we’ll bring you all the latest updates as and when they happen.

Over to you Gary.

What are my rights if I am concerned about my health & social distancing at work?

Employers are able to give employees reasonable and lawful work instructions. One of the clearer aspects of the Prime Minister’s Announcement on Sunday evening was that employees who may not work at home (and he gave the example of those working in construction or manufacturing, but there will be many others) should now return to places of work outside the home. So it would be reasonable for an employer to ask employees to now return.

However, employers have a duty to provide a safe place of work for employees. Under Section 100 of the Employments Rights Act 1996 employees may leave a place of work where there is an imminent health and safety danger. In the current situation, a failure for employers to provide for adequate social distancing measures in place could well equate to a reason to leave the place of work and return home. Employees in a union may well get support for such a grievance.

I have vulnerable people living with me – can I say no?

If an employee is in a vulnerable category it may well be unfair and in some cases discriminatory (e.g. is the employee is pregnant – which a classed as being at increased risk of COVID 19) to force the employee to attend work outside the home. It is all a question of degrees, in terms of how the employer can show that they have listened to legitimate concerns and made reasonable adjustments.

Living with someone who is vulnerable or especially at risk is not necessarily a reason an employee can refuse to return to work. However, you can, as an employee. raise a grievance and ask to be listened to and hopefully a compromise may be agreed, such as unpaid leave or using up annual holiday, but if an employer can show that a workplace is safe, the employer may insist on an employee attending.

What if I am concerned about public transport?

In his announcement on Sunday evening, the Prime Minister himself expressly mentioned public transport and indicated that it should be avoided if at all possible. He said the preferred way to travel to work was by walking, on a bike or in a car. If an employer has said that an employee should now return to work and public transport is the only option for getting in, the employee is in a tricky position by refusing to travel in.

In those circumstances, the employer may be able to not pay and also fairly dismiss the employee. However, any such action has to be ‘fair’ and that means the employer and employee should explore all of the options such as unpaid leave, using unpaid leave or revisiting the logistics of working from home and also take into account the employee’s particular circumstances, such as anxieties and own health issues. A reasonable adjustment may be to agree a different shift pattern in order to avoid public transport at its most busy times. There is also an argument that an employee using public transport is putting at risk other employees who are avoiding public transport, and by that reason making the workplace less safe for everyone else. In short, this is a legal grey area with no easy or clear cut answers.

If I express concerns about going back into work can I be fired or have furloughed taken away from me?

Under the Health & Safety at Work etc Act 1974 employers must conduct a suitable and sufficient risk assessment of all work activities carried out by employees. So before anyone returns to work this should be done and any mitigation measures identified (in the current situation it is envisaged that in the main these will relate to social distancing such as the physical screens we have seen at supermarket checkouts, quotas on the number of people in a particular room, hand washing facilities, staggering arrival and departure times etc) put in place. The Prime Minister’s Announcement on Sunday evening gave employers around 12 hours’ notice to do all that! So for this week expect employers to still be finding their feet. Employees can also expect to have their legitimate and reasonable concerns listening to, both before they return, and on an ongoing basis.

In theory, if an employee refuses to return to work, disciplinary action leading to dismissal may be initiated. However, if an employee is fired there is a risk to the employer that it will be an “unfair dismissal”. This is likely to be the case unless the employer can show that it has acted reasonably. Dismissing someone at this time could also have a reputational risk to an employer.

Accordingly, if the employee can be furloughed under the Government scheme that would seem like the best outcome at the present time. The furloughing scheme is not there to be abused and it does mean only 80% pay and the employee carrying out no work for the employer but it may be a pragmatic solution which suits both sides.

Gary Rycroft is one of the UK’s leading lights when it comes to all things legal and is a regular broadcast commentator and expert. He’s a partner Joseph A Jones & Co Solicitors and over the years has been a member of various leading committees at the Law Society. 

If you’re having a problem with any issues arising from the lockdown, don’t suffer in silence – get in touch. Resolver can help you make your complaint for free. Get started at www.resolver.co.uk