Can I be forced to go back to work during COVID-19?

Posted 4 years ago

While the general advice is to still work from home if you are able to do so, there are many people that are starting to return to work. Employers should not be asking employees to return to work if they are able to do their job at home, but if an employee does need to come to the workplace, employers should ensure that it is safe to do so.

It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

HASAWA Section 2

Government advice states that if you can work at home – you should. But for the employees who do return to work, if they are unhappy with the changes made to their workplace in order to protect them against COVID-19, they should first speak to their managers/employers if they believe the government guidance is not being adhered to. If these issues are not resolved after this and an employee is still unhappy with the measures, gov.uk states that they should report it to their local authority or the Health and Safety Executive who can force an employer to take further action.

If, after your employer has made changes to the workplace, you still reasonably believe that there is an imminent risk to your health and safety, then you may be able to refuse to work under the Employment Rights Act.

It states:

Section 44.1: (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

Employment Rights Act 1996

Further, Section 100 of the Employment Rights Act protects you from discrimination for excercising your right to safety under the law.

However, you must have a valid and lawful reason for refusing to return to work; without it, you can still receive disciplinary action.

Here are some other helpful questions employees might want some answers to…

What if I am in a vulnerable group or am ‘shielding’?

If you are in this group, you will have received a letter from the NHS with advice on “shielding” that details ways of protecting very vulnerable people from the virus.

This group of people can now leave their homes, if they want to, provided they stick to social distancing (Government advice for England only). The advice states that you are strongly urged not to go to work still and employers should allow you to work from home or take special leave. You may also be furloughed or you may possibly be entitled to statutory sick pay.

How much notice has to be given if employers want employees to return to work?

While there is no notice period written into law, giving at least 48 hours notice to employees would provide opportunities for discussions and a chance to air any concerns from employees. Acas advises that “Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.”

Can I see the risk assessments my employers conducted?

Gov.uk suggests in their Working Safely guidance that employers should share “the results of the risk assessment with [their] workforce and on [their] website”.

What happens if I was furloughed and I’m asked to come back?

When you were furloughed, you should have been told what may happen if you were asked to come back to work and whether any notice was going to be required. However, it’s important to remember that if you were furloughed under the government’s job retention scheme then employers are not allowed to require that you return to part-time or ad hoc work – your working contract would need to be renegotiated if they wanted you to do this.

So I can’t go back to work part-time?

Not if you have been furloughed under the government scheme. But if your company is not using Government money to pay you and then they ask you to come back part-time, they can. Make sure you know if your contract is being altered as employers cannot do this without your permission.

What if I have childcare concerns now that I’m asked to return to work?

Please see more information about what to do if you have childcare concerns in our recent blog about Childcare, Returning to work and COVID-19.

Returning to Work During & After COVID 19 Training

Our Returning to Work training could be the first step for employers to help alleviate some of their employees’ concerns about returning to the workplace. This training will provide them with practical information that helps them safely and smoothly return to work, shows them what can be done before and after the return to work and explores the importance of planning, organisation and preparation.