Returning to work (part 2) - Work safety including the commute

We know that many people remain concerned about their safety at work with regards to COVID-19. This article explores the responsibilities that businesses have to their employees and other approaches that may support you in getting people back to work.

In particular this article focusses on two further current topics around managing employees back into the workplace where they have safety concerns about their workplace itself, or their commute to and from work.

Employees refusing to return to work due to safety concerns

Businesses have a legal responsibility to put employees’ health and safety at the centre of their return-to-workplace processes. The UK government has produced guidance, which serves as a good starting point to help organisations create a safer and healthier workplace.

If an employer fails to take reasonable care in any of these areas, an employee may be able to make a number of claims, from resigning and claiming constructive or unfair dismissal, to personal injury. To reduce the organisational risks posed here, employers should consider the following recommendations:

1. Follow your industry guidelines for creating workplaces that are both safe and supportive of healthy working.
2. Provide evidence that any methods introduced have been subject to thorough risk assessment. Documenting your processes here may be vital should you be subject to a claim at a later date.
3. Review and monitor all cautionary actions that you have taken, continually considering any changes to legislation.

Once workplace safeguarding has been introduced employers can start to navigate any arising scenarios where employees are refusing to return to work. The following recommendations are based on an employee refusing to return to work without a genuine reason to do so. This may mean that they are not personally in a clinical risk category, they are not living with a vulnerable person and they do not have any challenging childcare responsibilities.

1. Discuss any concerns, making efforts to resolve any valid points where possible. During the discussion:

• Explain what additional H&S measures have been introduced. Confirm the changes in a written record, along with other discussion points.
• Be creative in identifying possible solutions, where possible.
• Be mindful that severe anxiety could amount to a disability under the Equality Act (2010). In such cases, additional measures may be required.

2. Consider options, where appropriate, including:

• Consider altering working conditions. Reducing or changing working hours/days to help overcome any concerns.
• Consider home-working, or a mix of attending the workplace and working from home.
• Where employees are reluctant to attend work and home-working is not possible, employees can request to use their holiday entitlement, claiming this in the usual manner.
• Employees may request a period of unpaid leave. In such cases the employer can decide whether they are happy to facilitate this request (subject to reasonable response).
• Where the above do not present as suitable solutions, it is possible to consider alternative work, which should occur on terms no less favourable that the employees current terms.

3. Request that the employee returns to work. This should only be done if you have taken all reasonable steps to protect the employee and safeguard your business against possible claims. Meeting your obligations may be enough for you to insist on the employee returning to work, however seeking advice from your HR Consultant is recommended before pursuing this option.
4. Take formal disciplinary action. This should only be considered if you have taken all reasonable steps to protect the employee and safeguard the business against possible claims. Seeking advice from your HR Consultant is recommended before pursuing this option.
5. Follow any company policies and procedures. This is crucial and will also help guide you through any work related scenario fairly and in accordance with legislation.

Does an employer’s duty of care extend to the commute?

It is a statutory requirement for employers to provide a safe place of work for their employees, but does this include potential risks that employees may face during their commute to and from work?

Every case is different, but generally speaking in the context of COVID-19 it is possible that employers could be found to have some duties to help employees avoid COVID-19 risks relating to their commute. We can expect litigation on this issue and other related legal challenges prompted by the COVID-19 pandemic. However, the outcome of any such litigation may not be known before employers need to make practical decisions about how to mitigate these risks. At the present moment, we recommend the following four considerations:

1. In line with government advice, all employees who can work from home, should continue to do so.
2. Where employees are required to attend work, the rationale for this decision should be documented by the employer. This should also include, where possible, information on how they will travel to/from work.

For employees who are travelling to/from work:

3. Employers should discuss any concerns that their employees have about their journey to/from work. This allows the opportunity for concerns or potential risks to be mitigated in advance.
4. Where employees can get to work using means other than public transport, support can be offered. Encouraging walking, cycling or driving, as well as providing additional access to bikes or adjusting work hours, affording employees extra time to walk.
5. Where employees require public transport for their journey, considering offering flexibility such as off-peak start and finish times that may reduce the associated risks. Additionally, make sure that employees are aware of the government guidance on travel and what they should be doing to avert risks.