The Big Q: I just don’t feel safe in being encouraged to return to work. What shall I do? What will my employer do?

Claire Vane
May 14, 2020

The Government’s plan for rebuilding

The Prime Minister made some preliminary announcements regarding the government’s plan to slowly restart the economy during his televised address on Sunday evening.  Monday saw the publication of “Our Plan to Rebuild” setting out further detail on the government’s COVID-19 recovery strategy.  Whilst some measures will begin happening this week, other changes in the pipeline have a longer lead time and further detail is required on restarting many aspects of our working and social lives.  Everything remains subject to the R-rate, and so tentative steps forward will be closely analysed against the scientific transmission data.  What we do know so far is:

  • Workers should continue to work from home rather than their normal physical workplace, wherever possible.
  • People who are able to work at home will then make it possible for those who need to attend workplaces in person, to do so while minimising the risk of being unable to distance socially on transport.
  • All workers who cannot work from home should travel to work if their workplace is open. Those parts of the economy that are allowed to open should indeed be open, e.g. food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions to this are those workplaces such as hospitality and non-essential retail which, in this first step, the Government is requiring to remain closed.
  • As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines which are focused on their energetic message of Being Alert and putting responsibility on each individual.
  • We hope that it goes without saying that those who have symptoms, however mild, or is in a household where this is the case, should not leave their house to go to work. Those people should self-isolate, as before, as should those in their households.

The big question that we are currently being asked is how do I operate if my employer is keen to have me back at work, but I think I can continue to work at home or, even if I cannot continue to work at home and have been furloughed, I do not feel safe either:

a) returning to the workplace in the light of the general feelings of concern around catching the virus

or

b) I have sick or vulnerable relatives with whom I live whom I am shielding

or

c) my medical history is such that I am concerned about catching the virus.  

There is a lot of information being banded around about Section 44 of the Employment Rights Act 1996 which is seen as the cornerstone of the UK’s health and safety at work legislation. What this says, in essence, is that it provides employees with a ‘right’ to withdraw from and refuse to return to a workplace that is unsafe.  There is a great deal more within Section 44, but in essence, that is it.  

The point is interesting and important.

What if employees do decide to invoke Section 44?  Ultimately, an employer could be bold enough to use the disciplinary procedure if they believe employees are unreasonably withholding their services, but if an individual continues to refuse to attend work in spite of disciplinary proceedings, this is going to end up with a dismissal.  

There are some big Questions to ask:

  • In practical terms, is this really wise?
  • Is there any employer that is going to be bold enough to challenge some fundamentals of human freedom associated with health and safety risks?  
  • Does any employer really want to be dismissing staff for cause in such an emotionally charged situation, with all the potential fallout that this risks with other employees?  
  • Is there a danger that other employees will feel unable to raise genuine health and safety concerns for fear of company reprisals?
  • Is the employer genuinely confident that they have truly eradicated or minimised the risks causing concern to such an extent that disciplinary action would be deemed reasonable?
  • How are employees going to feel about disclosing health conditions that hitherto they have not found it necessary to disclose?  

It is probable that employers are going to find themselves with an increasing number of mental health issues as a result of huge anxieties which may well then fall into the arena of the Equality Act 2010, and at this juncture, we veer into the field of potential disability discrimination.

This is unquestionably an emotionally charged time and employers are walking a tightrope of challenges by needing to get their businesses operational whilst responding to the legitimate concerns of their employees.  The employer/employee relationship is built on trust, confidence and mutual respect.  These facets need to underpin how employers work with their staff over this period.  We need to see employees acting with mature understanding that for the long-term security of the business, companies need to operationalise as quickly and safely as possible, and employers have to understand that to successfully restart, their employees needs and concerns must be legitimately addressed.  These two fundamental aspects are intrinsically intertwined and mutually dependent.

So, we would suggest, in the absence of clarity of the current communications, that the answer is not for employees to use their power under Section 44 of the Employment Rights Act 1996, and to retreat from engaging in the discussion.  Rather we would like to see employees pursue an open, honest and transparent dialogue, with their employers and vice versa.  No one person, manager or group has a monopoly on the answers to resolve this situation.  The most successful outcomes will be built through consensus, discussion and open-minded debate between managers and staff; it is this type of engagement that will foster long term trust. In our view a confrontational approach will only lead to creating a negative culture, workforce turnover, disgruntled employees and very unhappy individuals which will, as a result eventually leave.

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Claire Vane

Claire is the Managing Director and Founder of Integrated Resources. She is passionate about releasing potential in individuals and organisations.

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