• Insights

FAQs on staffing decisions when reopening workplaces in the UK

Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
Authors
Richard Miskella
Joint Managing Partner - United Kingdom
Lewis Silkin
Lucy Lewis
Lucy Lewis
Partner - United Kingdom
Lewis Silkin
United Kingdom
15.05.20
12
UK employers are facing many employment law issues as restrictions begin to be eased and more employees can come back to work. These FAQs cover specific issues in relation to deciding which employees should stay at home and what happens if employees do not want to return to work.

The latest position of the government’s Covid-19 efforts relating to employment is as follows:

  • The government has published its post-Covid-19 recovery strategy, setting out a “roadmap” for gradually easing the lockdown. This includes a slight change in emphasis in the government’s guidance on work.
  • The broad advice from the government remains that anyone who can work from home should continue to do so wherever possible.
  • The government has also published more detailed guidance on working safely during coronavirus (Covid-19). This includes eight separate sector-specific guides covering a range of different types of work (construction and other outdoor work; factories, plants and warehouses; homes; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; and vehicles).

 

The following are answers to frequently asked questions regarding reopening workplaces. See also our FAQs on managing a safe return to work which cover health and safety obligations, medical testing, contact tracing, and adjusting hours and responsibilities. Our FAQs on furloughing employees deal with all aspects of the government’s Coronavirus Job Retention Scheme. See also Staffing decisions when reopening workplaces – a flowchart, which provides an overview of the position explained in these FAQs.

What if we are not ready to open but employees want to come back?

Some workplaces remain legally required to close (including businesses in retail, hospitality and leisure). Employees in those businesses clearly cannot return.

Other businesses can potentially be open. However:

  • Businesses whose operations can continue with everyone working from home are unlikely to reopen imminently.
  • If an employee can work from home, they should continue to do so even if they would prefer to come back to work.
  • If the work cannot be done from home and you are not legally required to close your business, you can choose to reopen your workplace but you should not do so before being satisfied that it is safe (see our FAQs on managing a safe return to work).

 

It may take you some time to get ready to open. If the employee is currently on furlough, check the terms of your furlough agreement. If the employee has agreed to remain on furlough until, for example, the end of the furlough scheme or until you recall them to work, then you can hold them to this agreement and keep them on furlough until you are ready to recall them.

We don’t need everybody to return immediately – how do we choose which employees should come back?

We looked at this issue in our insight article on how to manage a return to work.

This question is currently only relevant to employees whose work cannot be done from their home. If employees can work from home, they should continue to do so.

For work that cannot be done from home, we advise that you start by exploring who would be willing to come back in.

If too many employees volunteer, you may need to implement a rota system or make selections on an objective basis. If you are implementing a rota system, try to match employees with the same team each time they come into work and split employees into smaller, contained teams if possible.

If not enough employees volunteer, you may need to have a mandatory system. Remember that employees with caring responsibilities may be unable to return at all, particularly single parents and those whose partners are key workers so cannot share caring responsibilities. Vulnerable employees, employees who live with vulnerable people, pregnant employees and employees with anxiety or similar health conditions may not want to come back. We explain the position for these groups of people separately below, but it will generally be safest if you can avoid calling on these categories of employee and leave them on furlough or other types of leave if possible.

If employees are on furlough, and you are selecting just some of them to come back, remember that employees who are unhappy about being kept on furlough (because, for example, they are on reduced pay) could raise grievances about not being selected. Equally though, where employees on furlough are receiving 100% of their pay, it may be difficult to incentivise those who are returning to work.

What about office-based staff?

The current position is that those who can work from home should continue to do so. Office-based staff should therefore stay at home unless they cannot work from home or it is business-critical for them to come in. Businesses with entirely office-based staff are unlikely to reopen imminently but can use the time for planning, including consulting employees about their assessment of risks (see our FAQs on managing a safe return to work).

What if there’s a disagreement over whether the employee’s job can be done from home?

If the work can’t be done effectively at home but the employee disagrees, you should attempt to resolve the dispute but, if that proves impossible, you may have to issue an instruction that the employee comes back to work. Ultimately, if the employee refuses to do so, you may need to consider disciplinary action, although you may wish to consider allowing a period of unpaid leave. If the employee is concerned about work dangers, the position may be different (see below). It may also be difficult to show that a job which has been done from home to date cannot be done from home moving forward.

What if the work normally could be done from home but the employee’s home circumstances mean they cannot work from home effectively?

These employees could be on furlough. You could also prioritise them for return to the workplace as soon as you are ready to reopen (particularly if they are in a business-critical role). However, you are not required to reopen your building (or parts of it) to accommodate employees whose home circumstances mean that they cannot work from home. You should, though, be taking steps to safeguard your employee’s mental health and wellbeing and employees who are struggling to work from home effectively may need special support.

What if public transport restrictions mean that employees can’t get to work?

Public transport is going to be seriously restricted in the short to medium term. To enable employees to get to work, in practice you will need to adjust start and finish times and support your employees to travel in other ways (ideally by walking or cycling). Employees with difficult journeys could potentially remain on furlough. The government has published guidance on safe travel which advises people to consider all other forms of transport before using public transport. It also advises travellers to travel outside of peak times if they can and says ‘Your employer may agree alternative or flexible working hours to support this.’

What if the employee says that they cannot come to work, citing serious and imminent danger?

All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they are in ‘serious and imminent danger’. For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes they are in serious and imminent danger. It’s not relevant that you disagree about the danger; the question is whether the employee’s perspective is reasonable. This can include danger caused by the behaviour of work colleagues.

In situations where this protection applies, the employee would be entitled to stay at home on full pay.

This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action. It was not designed with Covid-19 in mind and it is difficult to predict how an Employment Tribunal (ET) will apply it to the current risks. The right was also designed for dangers in the workplace and it is unclear if it could be extended to dangers associated with the employee’s commute.

The ongoing uncertainty over the risks presented by Covid-19 combined with the constantly changing picture may mean that ETs regard an employee’s concerns as reasonable even if they have no particular vulnerability, the employer is complying with all guidance and no cases of Covid-19 have been found in the workplace. Alternatively, employees may need to show that they have a vulnerability and that there are significant health and safety lapses before it is reasonable for them to consider themselves in serious and imminent danger.

We expect that the scope of this legal protection and its potential application to Covid-19 will be tested in litigation soon. Until then, it is difficult for anyone to be sure how it will apply. It is clear that at least some employees may be within their rights to stay at home on full pay in some circumstances. It is also clear that you can reduce the chances of this argument succeeding by being scrupulous in your approach to health and safety.

If an employee asserts that they are refusing to work for this reason, you need to make sure that you investigate their concerns and provide a reasoned and documented response. Remember your duty of care towards employees who are worried and ensure you are taking practical measures to support their mental health and wellbeing. Many employees will be anxious, and you should anticipate this.

What if an employee is not ill, vulnerable, in any special category or citing any particularly serious dangers but is unwilling to come back?

You could potentially take disciplinary action against such employees where you are confident that you are taking all reasonably practicable steps to control the risks. We would caution against doing this in most cases. Any dismissal could be regarded by an ET as unfair and disproportionate in the current situation and any disciplinary action could result in constructive unfair dismissal claims.

The best approach currently is likely to be to keep the employee on furlough or put them onto unpaid leave  (employees who are not able, ready and willing to work are not entitled to pay) while continuing to take practical measures to support their mental health and wellbeing.

In time, the furlough scheme will be wound down and keeping employees on unpaid leave may become unsustainable. In those circumstances it may be appropriate to consider termination of employment. As the situation develops and more employees return to work, it may also become safer for you to take disciplinary action.

What if the employee is classed as vulnerable and they are unhappy about coming back?

The government recognises two groups of vulnerable people: those who are clinically extremely vulnerable (who have been advised to shield themselves) and those who are clinically vulnerable.

The government’s guidance says that clinically extremely vulnerable people are ‘strongly advised not to work outside the home’, so they should not return to work. The latest guidance on safe travel underlines this, by advising clinically vulnerable people not to travel. If they cannot work from home they are entitled to statutory sick pay, or could remain on furlough, although it is currently unclear if you could now put them on furlough (see our furlough FAQs for more on this).

Clinically vulnerable people who cannot work from home can return to work but must take extra care with social distancing and, in line with the government’s guidance, should be ‘offered the option of the safest available on-site roles’ which enable them to stay the requisite two metres from others. If any such role is not available, the guidance suggests assessing whether this is an acceptable level of risk. We consider, however, that remaining on furlough or taking unpaid leave (or furlough) is currently a better approach for vulnerable employees if they are unhappy about returning to work, given the legal risks:

  • You owe a duty of care towards vulnerable employees and, as the government guidance says, this may involve taking ‘extra’ care. Failure to enforce additional precautions could result in a claim for negligence. Remember also that you will be vicariously liable for the negligence of your employees, some of whom may act in a thoughtless or irresponsible way.
  • Many vulnerable employees will also qualify as disabled for the purposes of the Equality Act. This means they have the right to reasonable adjustments, which could potentially include staying at home (but we don’t believe that this would extend to a right to stay at home on full pay).
  • It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to return to work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come back to work if, for example, other employees could cover their role or you could recruit temporary cover.

 

In our view, you are not required to pay a vulnerable employee who is not willing to return to work unless they have a reasonable belief that they are in serious and imminent danger (see above).

What if the employee is classed as clinically vulnerable and they want to come back but we are too wary of the risks and we’d like them to remain at home?

If you have a clinically vulnerable employee who wants to return to work but you would prefer them to remain at home, the legal position is different.

If they have agreed to be on furlough, then you can require them to keep to this agreement. Once any agreed furlough period comes to an end, unless you agree something else, a salaried employee who is ready, willing and able to work would be entitled to full pay if you required them to stay at home.

There is a potential exception if you have an agreed lay-off provision in the employment contract which entitles you to lay the employee off without pay (although these are quite rare), or if the employee is a casual worker who is not entitled to be provided with any work.

Remember that you will need to continue to take steps to safeguard your employee’s mental health and wellbeing, which may be suffering if they want to return to work but are not allowed.

What if the employee lives with a vulnerable person?

You do not owe a duty of care to people who live with your employees. However, those household members could well be disabled for the purposes of the Equality Act and there is a concept of associative discrimination which could potentially be relevant here. UK law currently only prohibits direct discrimination against an employee because of their association with a disabled person. This covers situations where, for example, an employer treats someone worse because they have a disabled child than they would have treated them if their child was not disabled. This kind of associative discrimination would not be relevant to Covid-19 situations.

However, there is an anomalous and surprising decision of the European Court of Justice which suggests that associates of disabled employees might be able to claim indirect discrimination if they are affected by a provision, criterion or practice that puts disabled employees at a disadvantage. (The case concerns a claim for indirect race discrimination made by an individual who did not share the disadvantaged group’s race). This judgment has not yet been applied in the UK and we do not know what the UK courts would make of it given that the wording of the Equality Act does not appear to enable a claim to be formulated in this way.

The government guidance for who should be going to work also suggests employers pay ‘particular attention’ to people who live with clinically extremely vulnerable individuals.

Aside from employee welfare concerns, there may therefore be legal reasons why you might want to let some employees remain on furlough or unpaid leave if they are very worried about the risks to somebody they live with. In our view, however, they would not be entitled to paid leave in these circumstances.

What if the employee is pregnant?

Pregnant employees are treated differently than other vulnerable people and may have a greater claim to being allowed to remain at home on full pay, if they are not already on furlough.

Pregnant women with heart disease have been included in the list of clinically extremely vulnerable individuals who must not work. All other pregnant women have been included in the list of clinically vulnerable people as a precaution and have been advised to be particularly careful about safe distancing, because the risks to them remain unclear.

As the employer, you have to assess the specific risks to pregnant employees and, where these are identified, you must do all you can to prevent or remove them. It may be possible to do this by taking extra precautions to enforce safe distancing in the workplace. The current guidance does not say that vulnerable employees can never be asked to work, and this includes pregnant employees. It is a matter for your own risk assessment and whether you are confident that you can provide a safe workplace.

If you cannot ensure safe working conditions, you need to temporarily alter the pregnant employees’ working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend the employee on full pay. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people.

What if the employee has anxiety or a similar condition which impacts on their ability to return to work?

Employees in this category could be kept on furlough. If you require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay under your usual policies.

Even if they are not signed off sick, employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave.

What if employees are unable to return to work because they have no childcare?

The three main options where employees have no childcare available are:

  • Furlough (see below).
  • Employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of four weeks’ parental leave per child).
  • Employees have a right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants. This would include a situation where the school or nursery has not reopened for their children, their childminder is not working or their usual reliance on grandparent care has been disrupted. Under normal circumstances, the employee would be expected to put in place alternative care arrangements, rather than having a right to an extended period of time off to look after their children themselves. The latest guidance does say that paid childcare can take place if public health principles can be met, as this is work that cannot be done at home. This may encourage some childminders to start up again and help some parents return to work. However, in the current circumstances, we expect ETs to be sympathetic to employees who are genuinely struggling to find suitable childcare in the short term. The prime minister has also stated that, if people do not have access to childcare, he regards that as an ‘obvious barrier to their ability to go back to work’.

 

If employees are unwilling to come back to work, can they stay on furlough?

Probably yes.

There is a concern that it might be seen as abusing the furlough scheme to keep an employee on furlough when you have work they could potentially do.

We think it should be legitimate to keep clinically vulnerable employees on furlough for the time being, even if you might otherwise have asked them to return. We believe that this is also true for carers. The HMRC guidance for employers clearly says that employees who are unable to work because they have caring responsibilities can be furloughed. In our view, this means that an employee who genuinely cannot come back to work can remain on the furlough scheme, even if you would have liked them to return. For HMRC audit purposes, however, you should ask for information to verify that they are unable to work (even if this is more information than you might ordinarily ask for).

The position is less clear-cut for employees who are worried about the risks of working or commuting, although we think the risks are low if you only need some employees to come back and you are prioritising volunteers.

For more details, see our FAQs on furloughing employees.

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances.