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Clarity on the Rights of Those Being Asked to Return to Work

Yesterday (10 May 2020) the Prime Minister announced that employees should be "actively encouraged to go to work" if they cannot work from home. The broad response has been one of confusion, however two governmental documents have provided at least some clarity on the situation.

The first document is the Acas COVID-19 guidance which was updated by removing a previous reference to "staying at home." It also made further amendments as follows:

- A new section "Planning to return to the workplace".

- Another new section "If an employee raises an issue".

- The list of groups of vulnerable workers in respect of whom employers must take particular care no longer refers to individuals who care for someone with a health condition that might put them at greater risk (although the list is not stated to be exhaustive).

The updated guidance encourages employers and employees to talk as early as possible about when employees can return to the workplace. However, it states that staff should continue to work from home if they can. Interpretation of the guidance at this stage could be that discussions about a return to the workplace should therefore only be focused on those who cannot currently work from home.

The guidance also now states that when planning a return to the workplace employers must:

- Consult with staff and employee representatives (including any trade union representatives and health and safety officials).

- Carry out risk assessments.

- Make the workplace as safe as possible for staff, customers and anyone else who visits.

The guidance rightly recognises that individuals may obviously be anxious about returning to the workplace. As such, employers and employees are advised to talk about concerns and to "try to resolve them together." How this will work in practice will be difficult to imagine with the obvious tension from those who have been asked to commute into work, regardless of any safeguarding within the workplace.

The other new section "If an employee raises an issue" expressly states the obvious which is that employers and managers should take issues raised by staff seriously.

The second document, released today, is the government publication OUR PLAN TO REBUILD: The UK Government’s COVID-19 recovery strategy.

The proposals in this document take effect from 13th May 2020 and state:

- For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. This will help minimise the number of social contacts across the country and therefore keep transmissions as low as possible.

- People who are able to work at home make it possible for people who have to attend work places in person to do so while minimising the risk of overcrowding on transport and in public places.

- All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example this includes 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 during this first step the Government is required to remain closed.

- As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines…which will be published this week…

- It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should those in their households.

So where does this leave us?

The position appears to be largely unchanged and our view remains that employers have additional health and safety obligations in respect of this pandemic and, further, it would be unlawful to dismiss an employee or subject them to any detriment on the basis of their unwillingness to return to work due to health and safety concerns. We're very happy to talk to anyone who has specific concerns and would like to understand their legal rights.

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