A week in to the third national lockdown and the legalities and logistics of working during the pandemic is one of the hottest topics about. While there is no doubt that more people are allowed to go out to work this time around than were permitted to back in March, the message from Government is still very clear. Employees MUST work from home if they can effectively do so, and must only travel to their workplace if they genuinely cannot do their job remotely.
Jobs that fall in to this category include key workers, as well as healthcare professionals, teachers, childcare providers, transport workers, people who work in construction or manufacturing, funeral directors, and essential retail workers. In addition, domestic cleaners, dentists and estate agents as now also able to work. Where the lines blur are within businesses where staff technically can work from home, but employers feel they would be more productive carrying out their duties from the workplace.
So, what happens when there is a dispute – and the employer insists that the staff member comes in to work against their wishes? Our team of experts have looked at various scenarios and considered the rights of both the employee and employer in each.
The main concern of workers is clearly their own safety.
In England, the guidelines set out strict measures which employers must follow, which as well as preventing the spread of the virus give the employee a “checklist of reassurance”. These include:
• Minimising the number of unnecessary visits to the office
• Ensuring that staff observe 2m (6ft) social distancing wherever possible
• If that is not viable, staff should observe 1m social distancing with additional precautions
• Frequent cleaning of surfaces, objects and communal areas
• Extra hand washing facilities
• Introducing one-way systems to minimise contact
• Using screens or barriers between staff
• Using back-to-back or side-to-side working (rather than face-to-face) whenever possible
• Staggering start/end times
• Collecting visitors’ contact details for NHS Test and Trace
If employees are unhappy, and feel their employer has not addressed their concerns, they can contact their local authority or the Health and Safety Executive, which can force firms to take action.
Where a business can demonstrate it has taken all necessary measures, it can insist that the staff member comes to work as required.
Under the new measures, people who are clinically “extremely vulnerable” should now shield once more and will be contacted by letter advising them to do so. This group should NOT go to work, even if they cannot work from home.
These people can ask to be furloughed (although the company does not have to grant this) or they may be able to claim statutory sick pay using a shielding letter as evidence of the need for this.
The childcare issue
The mandatory closing of schools across the UK, while essential in efforts to contain the virus, is a huge logistical nightmare – particularly for those with younger children. Throw in the additional requirement to supervises online learning, it all becomes very complicated.
Despite this, if an employer requires their employee to go in to work, they must do so, regardless of childcare commitments. The Government has said that parents can ask to be furloughed – but employers do not have to grant this.
Clearly, no one is suggesting that children can be left home alone, so there are other options. Parents who require time off for childcare may be able to take this as annual leave, or as unpaid parental leave. Some employers will also consider flexible working.
So, can an employer “force” an employee to attend work?
As with many things during the pandemic, there is no black and white. Many different factors need to be taken in to account, including individual circumstances and the type of work required. Employers must treat employees fairly, and be as flexible as possible – although they are breaking the law if they demand an employee return to their workplace after an employee informs them they are shielding.
If you are in any doubt at all it’s always best to speak to a reputable HR company. Multi-Award winning People Matters HR, Bury’s leading HR business, have a wealth of experience and can offer the very best advice. Contact us on 0161 7381808.