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COVID-19: EMPLOYMENT LAW: Can you be forced back to work and what are your rights if you are?

COVID-19: EMPLOYMENT LAW: Can you be forced back to work and what are your rights if you are?


Expert view

For lots of people, Boris Johnson’s encouragement to start returning to the workplace created anxiety about the working conditions they would face. We are now a few weeks on from the partial lifting of lockdown and I have certainly noticed more traffic – and not just because of visits to the beach or Barnard Castle.

Schools, offices, dental practices and non-essential retailers are just a few examples of those preparing to re-open and adjust to the new normal.

But what does this mean for the employees. Must they return?

Employers should always ensure the workplace is a safe environment. COVID-19 has added a new threat to employees’ safety in the form of customers and colleagues. Employers should carry out a risk assessment in line with the Government’s return to work guidelines. It is good practice to communicate this with their employees to demonstrate what is being done to create a safe environment. It will also encourage a discussion as to the expectations of the employees and will therefore reduce the chances of a dispute.

So, can an employee refuse to return or leave their workplace if they feel unsafe? In short, yes; but it is preferable if these concerns can be discussed with the employer first.

Section 44 of the ERA 1996 protects employees from suffering negative consequences should they raise concerns about a serious and imminent danger to their health. Section 100 (1) ERA improves this protection by classing any dismissal for this reason (amongst others related to Health and Safety) as automatically unfair.

It should be noted, the law only requires the employee to have a reasonably held believe about the inadequacy of their working conditions which is very wide. In this climate, COVID-19 is a perfectly legitimate concern.

This note is only a very brief insight into the directly relevant provisions of the ERA. There is protection elsewhere which may be relevant to your circumstances.

If you are an employer and are concerned about how to re-open your business, or an employee concerned about being forced to return, please get in touch to discuss your options.

Campbell McKellar 0117 926 4121 / campbell.mckellar@meadeking.co.uk