Can a business insist their employees return to office-based working?
There is no longer an instruction from the Government to work from home, and a gradual return to work is recommended. Employers can ask employees to return to work if they have ensured, as far as reasonably practicable, the health and safety of their employees, which involves carrying out a risk assessment and following the Government’s Working Safely Guidance. The Government guidance is subject to change and on 14 September it set out its Autumn and Winter plan for this year. Plan B, which involves asking people to work from home if they can, for a limited period, would be enacted if further measures were required to safeguard the NHS.
Is an employee entitled to refuse to return to the office if they feel unsafe doing so?
If an employee feels unsafe about returning to work, they should inform their employer so that the issue may be resolved. However, if the issue cannot be resolved and the employee ultimately refuses to attend work the employer may be able to take disciplinary action for failure to follow a reasonable instruction. It depends on all the circumstances, including what health and safety measures the employer has taken, the public health advice at the time, whether the employee has any health conditions putting them at increased risk. An employee does have the right to make a request for flexible working, which can include home working or hybrid working, which an employer will need to consider. An employee may want to seek advice from ACAS or specific legal advice from a solicitor if their employer is instructing them to return to work.
What can an employee do if they feel they are being put at risk by returning to the office?
An employee should raise any concerns with their employer, or health and safety representative (where there is one). Under Health and Safety legislation an employee has a duty to inform their employer (or the health and safety representative) where the employee reasonably considers there is a workplace situation which represents a serious and imminent danger to health and safety, or there are any shortcomings in the employer’s protection arrangements. If an employee does not consider that their concerns have been addressed appropriately they have the option of reporting the issues to the Health and Safety Executive or the local authority.
What rights to leave does an employee have if they need to take time off to look after a dependant as a result of coronavirus?
An employee has the right to a reasonable amount of time off where it is necessary to provide assistance if a dependant falls ill. An employer should allow an employee a reasonable amount of time off to deal with a dependant who has fallen ill. The right does not enable an employee to take ongoing time off to care for the dependant until they are well, it only enables an employee to make arrangements for the provision of care for that dependant, which could include arranging to employ a temporary carer, or arranging for a relative to care for that dependant. What is reasonable will depend on the employees individual circumstances which includes the extent to which anybody is available to help out. There is no statutory obligation on an employer to pay for that time off.
Can an employer insist workers are fully vaccinated before returning to the office?
This depends. For those employees who work in a care home the Government has passed legislation which will come into force on 11 November 2021. All staff working in care homes will need to be fully vaccinated against coronavirus unless they are medically exempt. For those employees who do not work in a care home, it could be problematic for employers to justify a mandatory vaccination policy, at least for existing staff who have at least two years’ service (generally, when an employee is protected from unfair dismissal). Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, it does not prevent transmission and it is unknown how long the protection offered by vaccination will last. It is known that immunity does fall off. Further the current advice is clear that vaccination is not a substitute for workplace COVID-19 secure measures.
An employer might be able to justify mandatory vaccination for those employees whose role involves overseas travel. For new starters and those with less than two years’ service there is less risk for mandating vaccination as generally there is no risk of unfair dismissal claims, although an employer will need to consider any potential discrimination issues. An employer should seek specific legal advice on their options in this area.
For more information, contact our specialist Employment Law Solicitors.