Thursday 2 September 2021 12:57 pm

Return to work: The most pressing legal questions answered

While government instructions to work from home expired in July, many employers have chosen to wait for the Summer months to pass before facilitating a return to the workplace.

The transition from enforced Covid restrictions to a more personal interpretation of the rules will inevitably lead to confusion for small business owners across the country.

After such a financially difficult period for many companies, employers can ill afford to deal with internal legal disputes now ‘freedom day’ has passed. 

In an exclusive interview with City A.M. Clive Rich, CEO of the online legal platform LawBite answers four of the most pressing questions for employers.

Can businesses enforce a two jab vaccine policy for employees returning to the office?

Employers would need to consider the risks of potential discrimination against health and safety obligations carefully before choosing to enforce this.

They could encourage employees to take up the vaccination (for example, giving them paid time off to have the vaccine), but, as it stands, there is no mandatory requirement by the government at this stage so enforcing a ‘vaccination or no work policy’ may lead to unfair dismissal claims.

If an employer wishes to impose mandatory vaccination, they must carry out a detailed risk assessment to show why vaccination is required in addition to compliance with the employer’s Covid-19 guidelines in place. 

This would demonstrate why vaccination is necessary for the employee to carry out their role. They might also need to consult with workplace representatives or trade unions in some circumstances.

Considerations of alternatives should be made (e.g., allowing employees to work from home; enforcing the compulsory use of face coverings etc) but these must not place a detriment on any employee.

Can an employer dismiss an employee for refusing to return or wear a face covering to the workplace?

Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.

The employer should carry out a risk assessment to protect the employee from any health and safety threats.

ACAS recommends that employers should talk to those employees who are anxious about returning to work. It may be that the employee could continue to be furloughed (until the scheme ends); work from home if that is feasible; arrange car parking to avoid the use of public transport, or stagger working times to avoid peak travel hours and packed office spaces.

If the employee still does not want to go back to work, the employer could suggest they take annual leave or unpaid leave, but the employer does not have to do so.

If the employer has carried out risk assessments and deems it suitable for that employee to return to the workplace, a refusal to attend work may result in disciplinary action.

Since 19 July, face coverings have not been required by law but the government recommends that people continue to wear them in crowded, enclosed spaces where individuals come into contact with those they do not ordinarily meet.

If the risk assessment identifies that a face covering should be worn, for example when meeting with clients or customers, the employee should be notified of this and provided with such face coverings free of charge. 

Whether it would be reasonable to dismiss an employee will depend on a number of factors, including previous warnings; what was said at the disciplinary hearing and the results of the employer’s risk assessment.

Can I insist that all employees use the NHS Covid-19 test and trace app? Is refusing to

download the app and then bringing Covid into the office a case for dismissal?

Employers may consider introducing a requirement to use a track and trace app on a device provided by the employer, depending on the employer’s workplace, but it is not mandatory for employees to have the app. 

It would be unreasonable for the employer to insist the employee uses the app on their own device and not one owned by the employer.

If the employer introduces such a policy and intends to process any of the personal data produced through the employee’s use of the app, it will need a lawful basis for doing so and to be able to demonstrate compliance with the UK GDPR and Data Protection Act 2018.

It is questionable whether the employer could validly require employees to use the app at all times, including outside of working hours, which would normally be required for the app to work properly. Employers would need to be careful about invading the employees’ privacy in these circumstances.

It is unlikely therefore that the employer could fairly dismiss the employee for refusing to download the app. 

The employee will already be under a duty of care to comply with the employer’s risk assessment and their health and safety obligations, but the employer will need to be sure that it is the employee’s failure in some way that brought Covid-19 into the office and take reasonable adjustments into consideration.

How responsible is an employer for ensuring the prevention of employees catching Covid?

Employers have a legal responsibility to protect their employees and others from risks to their health and safety. They must make sure they consider the risk to workers who are particularly vulnerable to coronavirus and put controls in place to reduce that risk. 

Employers should routinely check that the safety controls are being adhered to by its directors, managers, employees and visitors.

Employers should talk to the clinically extremely vulnerable workers returning to their workplace and explain what measures are being taken and address their concerns in line with the above.

If the employer fails to adhere to the safety controls they have put in place, then the employer would be liable for such breaches of health and safety in the usual way in accordance with the Health and Safety at Work etc Act 1974.

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