Q&A: DAS Legal on employee rights and returning to work

5 August 2020

DAS Law answers key questions about your employees' rights when returning to the workplace, including whether they can refuse to return if they feel it's unsafe, whether they can ask to remain on furlough, and if it's safe for them to return to work if they've recovered from Covid-19.

It is expected that nearly two-thirds of the working population will have returned to work by the end of August, with safety measures put in place to protect them. Nevertheless, many employees may still feel uncomfortable about returning to their workplace. Can an employee refuse to return to work due to fears of contracting Covid-19 and where does the law stand if employees decide to ‘take a stand’? Chloe Williams, Legal Adviser at DAS Law answers key questions around employees returning to work during the Covid-19 pandemic. 

Can an employee refuse to come back to the workplace if they feel unsafe?

This depends upon the situation itself. The law is very clear on the fact that if an employee feels that their place of work is unsafe, then they would be protected when taking certain measures, an example of this could be refusing to attend. The law is there to protect employees when it comes to their safety and they  therefore should not be put at any detriment as a result of taking such steps. However, whilst you do owe your employees a duty of care, if you have taken  all reasonable steps and are complying with all safety measures and have carried out risk assessments, then, unless there is a medical reason for your employee’s concerns about returning, the employee could be considered to be  on unauthorised absence.

Can an employee refuse to return to work if they feel unsafe taking public transport or insist that you pay or organise for their safe transport to and from work?

Although you do owe a duty of care to your staff, you do not have an obligation to arrange or pay for any safe transport to and from the work place (unless contractually obliged to) and this is generally not a reason for an employee to refuse to attend work. However, as above, should if your employee has any concerns around the safety of travelling back and forth to the workplace, you should discuss this with them. 

If an employee has been furloughed but doesn’t feel safe to return to work, even with lockdown easing, can they refuse to return to the workplace and ask to remain on furlough?

As above this depends upon the situation itself. It would be best for your employee to discuss any concerns they have with you  to begin with.  Furlough was put in place by the government under the Coronavirus Job Retention Scheme and it is to be used by employers when they are unable to operate or have no work for employees to do because of coronavirus. If you have asked an employee to return to work, this suggests that Furlough no longer applies as work is available. Failure for an employee to return to work without good reason could be classed as unauthorised absence.

An employee’s medical history makes them more vulnerable to the virus.  Can they refuse to return to work until they feel comfortable and safe to do so?

As stated above, this would depend upon the situation itself. You will need to talk to your employee about why they think the workplace is unsafe.  They should also consider talking to their  GP for some advice  and whether they can give any recommendations or suggestions for making sure the workplace is safe. Should the risk be too high, they may require a sick note. However, as stated above, failure to have good reason for not returning to work could be deemed as unauthorised absence. If an employee does have a genuine reason and health concern that affects their ability to return to work, best practice would be to ensure they have a letter or fit note confirming the need to remain off work due to the risks.

One of my employees has recovered from coronavirus - does this mean it is safe for them to return to work and interact with my other staff?

As long as they have followed current guidance from the NHS and have recovered then it should be fine for them to return to work. It is still however recommended to adhere to social distancing (and any other government guidance) at all times. Should they  get symptoms again it would be recommended to follow NHS guidance and to isolate again for at least seven days from where the symptoms started. Anyone within the same home who does not have symptoms must self-isolate for 14 days when the first person in their home started having symptoms, this is down to the belief that it can take up to 14 days for symptoms to appear.

One of my employees wants to return to work but lives with someone who is clinically vulnerable. Can they continue to work from home until the threat of infection has passed?

Members of the household who aren’t extremely vulnerable are not required to shield but have been recommended to limit their contact outside of the home. Generally there is no requirement for those who live with vulnerable individuals to stay at home. Should your employee have any concerns around this, then it would be best if you discussed your approach together and decide whether or not it’s possible for them to continue working from home.. However, without your consent, if an  employee refuses to return this could be deemed as unauthorised absence.

If an employee doesn’t want to return to work and wants to continue working from home, can I refuse their request? Is it grounds for dismissal?

Ultimately, this would come down to the reasons behind their request and whether it’s sustainable for your employee to be working from home. As previously explained the law is there to protect employees and regardless of length of service and they are protected by the law if they report any concerns over health and safety and should not be put at a detriment for doing so. Should an employee be dismissed, they could potentially have a claim for an automatic unfair dismissal.

One of my employees believes that they may be developing symptoms of coronavirus and have to self-isolate. Will they still get paid if they self isolate when others are returning to work?

Employees may be entitled to Statutory Sick Pay (SSP) as long as you are eligible. The government has brought in legislation which allows employers to pay employees who are off with symptoms and isolating from day one. Employees may be eligible to claim SSP if:

  • They are self isolating because they or someone they live with has coronavirus symptoms;
  • They are self isolating because they have been notified by the NHS or public health authorities that they have come into contact with someone who has the virus;
  • They are self isolating at home because they’re at high risk of severe illness from the virus – also known as shielding

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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