Returning to work in the coronavirus crisis: what are your rights?

Hilary Osborne in The Guardian 

 

Some people may be concerned about returning to work during the coronavirus crisis. Photograph: Matthew Horwood/Getty Images


As the lockdown restrictions begin to be eased across the UK, more workers are being asked to return to the workplace.

The government has said that employees should only be asked to go back if they cannot do their job from home, so if you can, your employer should not be asking you to travel in to work.

If you do need to go to your workplace, your employer is obliged to make sure you will be safe there. Employment lawyer Matt Gingell says: “Employers have a general duty to ensure, as far as reasonably practicable, the health, safety and welfare of all of their employees.”

Here’s a guide to your rights if your employer wants you back in the workplace.

How much notice should I be given that I have to return?

“If employees are unable to work from home, employers can ask employees to return to work and, technically, no notice is required,” says Gingell.

Solicitor and consumer law expert Gary Rycroft says there is no notice period written into law “but giving at least 48 hours’ notice should allow either side to have discussions and air any concerns or even official ‘grievances’”.

The advisory group Acas says employers need to check if there are any arrangements in place with unions or similar about notice. It advises: “Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.”

So while your employer could ask you to return straight away, a good employer would understand if there were things you needed to put in place first, and give you chance to do so.

What if I was furloughed?

When you were furloughed your employer should have outlined what would happen when it wanted you to go back to work, and this may have a clause saying that you have to return as soon as you are asked.

“The termination of the furlough agreement and when an employee will be expected to return to work will depend on the provisions of the agreement,” says Gingell. Again, though, even if there is no notice period, a good employer should realise that you may need some time to prepare.

If you have been furloughed under the government’s job retention scheme, your employer can’t ask you to go in and do ad hoc days, or work part-time. They would need to take you off furlough and renegotiate your contract with you.

Can they ask me to go back in part-time?

Not, currently, if you have been furloughed and they are using the government scheme to pay you. It only allows companies to furlough people for all of their normal hours, and bans them from asking you to do any work while you are off.

But if your company has not claimed government money to cover your wages, it can ask you to resume work part-time. Make sure you understand the terms of the request – your employer cannot adjust your contract without your permission, so if it is asking you to change your hours you should get advice.

Can they ask me to take a pay cut?

“The law here is the same as it would be if an employer made the same request in the normal course of an employee’s employment. Reducing hours and/or pay are deemed to be such fundamental changes to an employee’s terms and conditions that the employee concerned should be consulted and then agree in writing,” says Rycroft.

He points out that for some employers “this may be the only economically viable option”, and the alternative, if people refuse, could be redundancies. To make more than 20 people redundant there will need to be collective consultation.

What if I am in a vulnerable group or live with someone who is?

No special rules have been put in place to protect people in these groups who are asked to go into work but some already exist – if you are disabled or pregnant, for example, your employer has extra obligations.

Rycroft says some employees may be able to argue that it will be discriminatory to force them to attend work outside the home. “It is all a question of degrees, in terms of how the employer can show that they have listened to legitimate concerns and made reasonable adjustments,” he says.

If you are pregnant your employer is obliged to make sure you can do your job safely. This can mean allowing you to do your job from home, or giving you a new role which can be done remotely. If your employer refuses either of these options, and you do not feel safe going into work you should take advice. Employmentsolicitor.com says that you could be able to argue for a medical suspension on full pay, which will allow you to stay at home.

Living with someone who is vulnerable or especially at risk is not necessarily a reason an employee can refuse to return to work, says Rycroft. “However, you can, as an employee raise a grievance and ask to be listened to and hopefully a compromise may be agreed, such as unpaid leave or using up annual holiday. But if an employer can show that a workplace is safe, the employer may insist on an employee attending.”
What if I have childcare to worry about?

Legally, you can take time off to look after any dependants – these could be children, or older relatives. This time is typically unpaid. If you are currently furloughed and your employer does not have enough work for everyone to go back full-time, they may agree to leave you on furlough so you can continue to earn 80% of your normal pay.

What information should they give me in advance?

Rycroft says there is no law saying that employers should provide information before you return, but the government guidance to employers recommends that they do. He says this information – written or verbal – should cover how they are making your workplace safe in light of the pandemic. So you should be told what is happening to ensure social distancing and hygiene. “This will allow employees to understand how their health and safety at work is being addressed.

Can I refuse to go back?

Yes, if you believe there is a real danger to going to work. “If an employee refuses to return to the workplace due to the employee reasonably believing imminent and serious danger and is then dismissed for that reason the employee could, depending on the circumstances, have a claim for unfair dismissal,” Gingell says.

“The requirement that the employee has to believe that there is imminent and serious danger, does limit the right.”

Otherwise, you cannot refuse. “If someone refuses to attend work without a valid reason, it could result in disciplinary action,” says Acas. But you may be able to make other arrangements with your employer – perhaps you can use holiday or take unpaid leave, or if you have concerns about something like travelling at peak time, they may be willing to accommodate different shifts. Your employer does not have to agree to this, but it is worth asking.

What if I am worried when I see my workplace?

Rycroft says that under section 100 of the Employment Rights Act 1996 employees may leave a place of work where there is an imminent health and safety danger. So if, for example, you return to find social distancing is impossible, you could argue that this is a reason to leave your workplace.

But in the first instance you should try to resolve the issue with your boss. Gingell says: “Employers ought to to listen to the concerns of individuals and be sympathetic and understanding.”

If you do not get anywhere with this, you should take advice. If you are in a union, it should have a helpline you can call if there is no rep to speak to on site. Acas is another port of call, as is Citizens Advice.

“If the employer has breached the implied obligation to provide a safe working environment and/or trust and confidence an employee could, again, depending on the circumstances, resign swiftly as a result and claim constructive unfair dismissal,” says Gingell. But he says you should get advice before taking this action.

“Another option for employees to consider is contactIng the Health and Safety Executive, which enforces health and safety legislation,” he says.