Employers must make their premises as safe as possible

John Lee is an Employment Partner with Ledingham Chalmers

The last week has been yet another rollercoaster for workers, employers and the UK economy, with contradictory government approaches around the need to return to work as Covid-19 cases rise, with restrictions reimposed in some areas.

The approach of the UK and Scottish governments when it comes to non-essential workers heading back to the office has been starkly different – most recently with last week’s confirmation in Scotland that planned relaxations will be delayed for three more weeks, with no return to work for non-essential businesses. Working from home remains the default for now.

So what should employers have done and what can they do? What can employees legitimately expect and what protections do they have?

UK Government civil service bosses urged Whitehall workers back to the office, citing organisational and economic impacts of continued absence, while trade unions branded them Luddites, warning workplaces have changed forever and governments must focus on adapting to a “new working world” where technology makes home working easier.

Boris Johnson encouraged “Covid secure” returns to work, echoing CBI Director General Carolyn Fairbairn’s warning of commercial centres becoming ghost towns with cafés and shops in towns and cities suffering the lack of passing trade. Those concerns reflect Capita announcing the closure of one-third of its UK offices following a host of large employers confirming they have no intentions of returning to working norms this year and into 2021.

The UK recorded around 3,000 coronavirus infections for the second day running on Monday last week, fuelling fears of a resurgence of the virus. The Scottish Government announced new lockdown restrictions in Renfrewshire and East Dunbartonshire, with an extension of restrictions in Glasgow, East Renfrewshire and West Dunbartonshire.

That was prescient given the announcement of 176 new cases across all Scottish mainland NHS areas and three deaths in the 24 hours leading to the first minister’s 8 September daily briefing.

That came almost at the same time as Matt Hancock’s, expression of clear concern in the UK Parliament about the increases in reported UK infections and his confirmation of tightened restrictions in Bolton, followed by further restrictions on meetings of more than six people for social gathering.

Many hoped the eagerly-awaited review of 10 September would have opened office doors once again (albeit in a Covid-secure manner) but few were surprised by the Scottish Government’s reminder that the circumstances are considered far from suitable for that at this time – and with further restrictions on social gatherings, following Mr Hancock’s announcement the day before.

Regardless of where your business operates, you should have a specific Covid-19 risk assessment in place. This will set out the risks identified in your working practices, how they will be tackled at source and reduced to an acceptable level by specified measures, to reassure your employees when the time is right for their return. Some measures will be sector-specific, but typically these will include: traffic, visitor and activity restrictions; staggered shift times; increased hygiene, population and social distancing controls; contact tracing processes; and the removal of shared facilities.

A common issue has been the vexed position of employers who, having done all they reasonably can, are met with staunch refusals from employees invited back to work. Assuming they have taken all reasonable steps, employers are not obliged to pay staff that do so. However, if they are tempted to revert too quickly to disciplinary and dismissal sanctions, they may do so in haste but repent at leisure. Reassurance and encouragement may be a preferable strategy, at least in the short term.

Employees in the UK have significant protections against any detriment or dismissal arising from circumstances where they reasonably consider there’s a serious and imminent threat of danger from their workplace and refuse to return. They need no minimum period of service to present claims and any awards in their favour are unlimited.

When the stars are finally aligned for a return to non-essential working, irrespective of where your business is in the UK, employers should ensure their workplaces are as Covid-secure as they reasonably can be, and that their workforces are made aware of all of the measures in place.

John Lee is an Employment Partner with Ledingham Chalmers

Employers must make their premises as safe as possible – John Lee