As we approach our way towards the end of the Job Retention Scheme but with coronavirus cases continuing to dominate the news, I have noticed there is a growing sense of unease for employees who are due to return to work soon. The main concern is one of Health and Safety at Work and ensuring they are safe, or what their position is if they are classed as vulnerable or ‘high risk’. I have therefore set out some of the most frequent questions I have been asked recently. Read on for more.
Returning to Work and COVID-19
Q. The most common question I am being asked by employees is ‘will my employer make it safe for me to return to work?’
All employers have both statutory and common law duties to protect your health and safety at work. Therefore, it is their legal duty to ensure you return to a safe place of work.
Q. If you return to work and feel it is unsafe, you should report this as a health and safety concern. However, could this cause negative repercussions for you at work?
If you make a health and safety concern, your employer should consider your concerns reasonably and responsibly. They should look to resolve any issues you have and, if necessary, carry out an additional risk assessment to properly consider your concerns. If your employer fails to do this the good news is that employees and some workers have additional employment law rights to not be dismissed or suffer a detriment if they raise a health and safety concern. If you are dismissed by having raised a health and safety concern, this may amount to an Automatic Unfair Dismissal Claim.
Q. Can you be dismissed or disciplined if you refuse to go to work because you are concerned about your health and safety?
It is possible that your refusal to attend work, due to a belief that you may be at risk of contracting the virus, could be protected by the Employment Rights Act 1996. For example, where an employee is absent from work due to a reasonable belief that attending work would put them in serious or imminent danger, for an employer to dismiss an employee in response could be an Automatic Unfair Dismissal Claim.
Q. Can you be dismissed or disciplined if you refuse to attend work due to your commute and your concerns that you have a high risk of being exposed to the virus?
This is less clear. At present, this could potentially cover an employee who had a reasonable belief that their commute represented a serious and imminent danger. However, such danger must be hard to avoid and if there are alternative means of commuting to work, or if the employer allows flexibility to commute during off-peak times, the employer may have cause to raise their concerns and investigate.
Q. What protection due you have if you are ‘clinically vulnerable’, can your employer require you to come into work?
Possibly. Of course, if you can work from home this would be the most appropriate way to carry out your duties. However, if you cannot work from home, your employer should firstly undertake a risk assessment in relation to your vulnerability. Your employer has a duty of care towards you and if they fail to put in place appropriate measures they could breach their duty and also the implied term of mutual trust and confidence which could entitle you to resign and/or pursue a discrimination claim. It’s certainly best to obtain legal advice first, should this situation arise.
Q. If you are ‘clinically vulnerable’ what pay are you entitled to?
You are not entitled to SSP if you are unable to work remotely unless a member of your household is experiencing COVID-19 symptoms. Some alternatives for the employer are to continue to pay you your full salary or to have placed you on Furlough Leave.
Q. Are you entitled to SSP if you are shielding?
Yes, you are. If you are shielding you are deemed incapable of work for the purposes of SSP eligibility.
Q. What if I am not considered ‘clinically vulnerable’ but I am high risk?
Some employees will fall into the high-risk category but are not considered disabled. For example, individuals who are over 60 years’ old, suffer from cardiovascular disease or are pregnant can develop severe symptoms if they fall ill with COVID-19. If you choose to self-isolate, an employer should listen to your concerns and try to resolve them to protect your health and safety. It would be appropriate for an employer to consider offering you flexible working, or allow you to take holiday or unpaid leave. It may also be appropriate to obtain an Occupational Health Report to seek health advice.
How Can I Help You?
Clearly, the answers vary dependent on your circumstances but if you have any Employment Law issues, please do not hesitate to get in touch with me. You can call me on 01522 440512 for a free, initial chat.
Specialist Employment Law Solicitor
Lincs Law Solicitors
Tags: Automatic Unfair Dismissal coronavirus coronavirus dismissal coronavirus job retention scheme Discrimination discrimination at work employment law employment solicitor Furlough Leave health and safety at work job retention scheme lincs law solicitors lucy stones unfair dismissal