The law surrounding bringing people back to work, as Lockdown eases...

Published by

Kirsty Muir

Helena Morrissey, Head of Employment, at Thursfields Solicitors, takes a look at the challenges for employers bringing people back to work, whether they have been furloughed or working at home.

Much has been written about companies which are sadly going through redundancies at the moment, highlighting the challenges that such exercises present employers. However, what about employers bringing people back to work, whether they have been furloughed or working at home?

This presents its own set of challenges, all of which need to be handled carefully and to avoid conflict and potential claims from disgruntled employees.

Here’s a guide to the law surrounding bringing people back to work:

One initial challenge for employers is who to bring back first, as you may not need everyone straight away.

Where you have a ‘pool’ of equally suitable people, but you only need to bring a few back, then you should apply objective selection criteria (similar to a redundancy selection process) based on required skillsets and experience.

You may also wish to seek volunteers – some employees may be more willing to return than others. However, be careful not to make assumptions, for example: ‘She won’t want to return yet because she has childcare issues’, or ‘He won’t be able to come back because he’s over 60 and is therefore more vulnerable than others’.

Both approaches, however well meaning, could lead to discrimination claims.

What about people who you have asked to return but who refuse to do so. Again, this needs to be handled carefully.

Adopting a robust or cavalier approach without at least taking on board and considering their objections or concerns could lead to constructive unfair dismissal claims.

There are also certain protections in the Employment Rights Act, some of which have been much publicised, but somewhat misunderstood.

For example, what about the stipulation that an employee can refuse to go to work, but is still entitled to be paid “in circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably be expected to avert….”

Well, there is certainly no denying that the threat of coronavirus is serious, and arguably imminent. But what can employers do when faced with such a challenge?

The key here is ‘reasonable belief’. An employer who takes adequate steps to ensure that the workplace is as safe as reasonably practicable and who communicates these efforts clearly to employees would stand a good chance of demonstrating that an employee’s belief that they are in ‘danger’ is not reasonable.

However, employers who have cut a few corners, whether to save costs or otherwise, will have a far tougher job persuading a tribunal that an employee’s belief is not reasonable.

Make sure, therefore, that you undertake robust risk assessments and take all such measures as you reasonably can to ensure employee safety.

You are not expected to make the workplace 100% safe – this would be impossible. But taking sufficient and proportionate precautions to promote employee safely, of equal importance, and making sure you communicate these measures to them, is of paramount importance.

What can you do if employees still refuse to attend, whether for health and safety reasons or, for example, because of childcare issues or because they are in a ‘vulnerable’ category?

Well, in those circumstances, it is important to engage in open and frank dialogue to understand their concerns and difficulties.

If such employees can continue to work at home, this may be the best option for the time being. Alternatively, you could invite them to take paid or unpaid leave.

If there are no other options available, however, then you may be left with no option but to consider dismissal – but tread carefully. And ideally seek legal advice before committing to such a course of action to avoid unfair dismissal and discrimination claims.

Any businesses wanting HR or employment advice can call Helena Morrissey on 0121 726 8781 or email her at hmorrissey@thursfields.co.uk

Kirsty Muir