The government's announcement today regarding the workforce returning to the workplace aimed at stepping closer to normalityhas provoked conflicting responses. The Prime Minister has placed the responsibility for staff safety squarely on the shoulders of employers handing them "discretion" to decide whether to recall employees currently working from home. Whilst the coronavirus infection rate now appears to be in decline it has by no means disappeared.
Daniel Theron, a partner, observed "if all employers were created equal, extending the discretion to oblige staff to return to their workplace would not be a problem. However, this is clearly not the case. A recent poll conducted by YouGov reveals that of the employees who have been going into their workplace during the coronavirus pandemic, as many as one in four felt pressured by their employer to do so. One in three workers are unhappy about having to commute and one in five feel that the health and safety measures in place in their workplace are not adequate."
The chief executive of the Chartered Institute for Personnel and Development, Peter Cheese, "It's vital that organisations consider the physical safety and mental wellbeing of their people before returning them to the existing workplace." He went on to outline three considerations that employers should think about before asking staff to return,
1. is it essential for them to be in the workplace to do their job?
2. is it sufficiently safe?
3. is it mutually agreed with workers?
Doubts about the wisdom of the government's decision were echoed by John Phillips, acting general secretary of the General, Municipal, Boilermakers and Allied TradeUnion, (GMB) who commented "Passing the responsibility of keeping the people safe to employers and local authorities is confusing and dangerous."
A range of business groups voiced their opinions, whilst they welcomed the idea of returning to work there was considerable caution. The Recruitment & Employment Confederation (REC) CEO Neil Carberry said: "With the virus now in retreat, it is right to focus on opening up safe workplaces, not just working from home. More homeworking will be a permanent feature of the jobs market from now on — but there are lots of things businesses cannot do without workplaces open, and that would hold the economy back without today's step." Mr. Carberry also drew attention to the perceived risk of using public transport stating how important it will be to enforce the mask-wearing rules.
The Institute of Directors and the Trades Union Congress(TUC) had divergent views with Edwin Morgan, director of policy at the Institute of Directors stating"Directors need to balance the risks, and won't want to increase the possibility of closures down the line by rushing back. On top of this, not everything is in a company's control. There's no doubt that businesses reliant on commuter custom are facing immense difficulties...as many as two-thirds of our members say they intend to keep increased flexible working in place after lockdown ends." Whereas Frances O'Grady, general secretary of the Trades Union Congress, said the government had "passed the buck" on a big decision to employers. "We all want to get the economy up and running as quickly as possible. Returns to workplaces must happen in a phased and safe way." Ms. Grady commented. However, both organisations were in agreement that childcare could be a significant issue for many employees.
Daniel Theron points out "employment law entitles an employee to work in a safe environment and workers have the right to walk out if they believe that they are being asked to work in conditions that place them in "serious and imminent danger". Employers should think very carefully about how they choose to act on the latest government announcement." He further commented, "if an employee resists the call to return to work based on genuine concerns about their personal safety it would be wise to approach the situation with sensitivity and come to a mutually agreeable arrangement, rather than taking disciplinary measures."Giambrone's employment law team feels that the current situation brings a considerable element of risk to employers and would recommend a sensitive rather than a robust approach to such an issue. An employer's duty to ensure, as far as reasonably practicable, the health, safety and welfare of all of their employees has particular relevance during the coronavirus crisis andemployees dismissed for failing to return to work in the current situation stating that they believe that the risk of coronavirus puts them in "imminent and serious danger" may have a claim for unfair dismissal.
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Originally published 18 July, 2020
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