Are you Afraid to return to work? Experts answer all your questions.
Are you Afraid to return to work? Experts answer all your questions
What are my rights if I am asked to return to work?
In normal times, your employer can insist that you come into work and, if you refuse to do so, treat it as a disciplinary matter for failing to follow a reasonable management instruction to attend work. However, as we know, these are not normal times, says Kathleen Heycock, employment partner at Farrer & Co.
Hidden in its Covid-secure guidance is an acknowledgement by the government that “no one is obliged to work in an unsafe work environment”, she explains. “For example, the Employment Rights Act 1996 gives employees the right, in theory, to refuse to attend work in unsafe environments, as well as provides them with protection from being dismissed or treated to their detriment as a result.”
If an employer has not complied with the obligation to protect the health and safety of employees, there will come a point when telling people to attend to work is not a lawful and reasonable instruction, she says.
“If your employer can genuinely demonstrate that they have done everything necessary to ensure a Covid-secure workplace, and you are not classed as vulnerable to Covid-19, there may come a point in the future when they can insist that you attend work and take disciplinary action if you fail to do so. However, we are unlikely to be at that point just yet.”
Can I refuse to continue working if my workplace is unsafe?
Given the economic uncertainty surrounding the coronavirus pandemic, it is easy for employers to feel like they have no choice but to ask as many people as possible to return to work. But if you walk into your workplace and it is clear that there are no safety measures in place to protect you and your colleagues, or if what is provided is clearly insufficient, you can act.
Sections 44 and 100 of the Employment Rights Act 1996 protect employees from either being subject to detrimental treatment or being unfairly dismissed in the context of health and safety cases, says David Jones, employment barrister at St John’s Buildings.
“The law is complex and has, until now, been under-utilised in employment tribunals but this trend is likely to change in light of Covid-19. It is worth emphasising that in health and safety cases brought in an employment tribunal it is the employee’s belief that matters, not the employer’s opinion,” Jones says. “It is therefore possible that some employees may refuse to return to the workplace if in their opinion, it is unsafe to do so,” Jones explains.
The government has put the Health and Safety Executive (HSE) in charge of ensuring that workplaces are safe. If you are not satisfied with your employer’s actions, you can raise it with your employee or union representative, or report concerns to the HSE either by phone or by using an online form, says Heycock. The HSE can take a range of actions against employers, from providing specific advice through to requiring employers to take particular steps, including issuing enforcement notices to help secure improvements.