Coronavirus: Returning to work

 Published Monday, July 13, 2020 Daniel Ferguson

This Commons Library Briefing Paper discusses issues relating to returning to work as the Government to re-opens parts of the economy. It provides an overview of relevant health and safety law and a discussion of recent Government guidance on working safely in the context of Covid-19. It also includes a discussion of the positions in Scotland, Wales and Northern Ireland.

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• Coronavirus: Returning to work (PDF, 1 MB)

This is a fast-moving area and the paper should be read as correct at the time of publication (13.07.2020).

Governments in all four nations of the UK have published Covid-19 recovery strategies, setting out plans for the phased re-opening of the economy. As part of this process, the governments will at various stages be amending legislation and guidance that currently restrict which businesses can open and which workers can attend the workplace.

On 11 May, the UK Government published detailed guidance on the steps that businesses can take to comply with their health and safety obligations in the context of Covid-19.

On 24 June, the UK Government amended the guidance on 2m social distancing saying that businesses can adopt 1m social distancing with mitigations if 2m was not viable. It published new guides for close contact services, the visitor economy, hotels, heritage sites, performing arts and gyms and leisure facilities in advance of further business re-openings.

‘Return to work’

The shutdown of work has primarily been effected by two sets of rules:

• The restrictions on movement and gatherings; and
• The closure of business premises.

Workers who could not work from home and whose workplaces were not required to close were always permitted to attend work.

From 1 June in England and 10 July in Scotland, all workers were legally permitted to attend the workplace, even if their work could be done from home. However, the guidance continues to say that people should work from home where possible.

At present, the positions in Wales and Northern Ireland remain broadly unchanged. Under the relevant devolved legislation it is still an offence to go to work if it is reasonably possible to work from home.

In all four nations of the UK, rules on business closures are steadily being lifted. This is discussed in the Library Briefing, Coronavirus: Business re-opening (CBP-8945).

Employers are under no obligation to instruct workers to return and can keep eligible employees on furlough. The Coronavirus Job Retention Scheme is set to remain in place until 31 October 2020, although with employer contributions required from 1 August.

Health and safety

Employers have to follow a vast and complex body of health and safety legislation. The Health and Safety Executive (HSE) publishes approved codes of practice and guidance on health and safety law. In summary, employers have to:

• Undertake a risk assessment;
• Set up safe systems of work, informed by the risk assessment;
• Implement the safe systems of work; and
• Keep the systems of work under review.

The Government’s guidance, first published on 11 May 2020, does not replace existing law. Rather, it provides examples of the sorts of measures an employer might take in order to comply with existing legal obligations in the context of Covid-19.

Refusing to go to work

All workers have an obligation to obey lawful and reasonable instructions that are given by their employer. However, employees who refuse to attend the workplace because they reasonably believe that there is a serious and imminent danger have certain protections under employment rights legislation.

There are still a number of workers who should not be required to attend the workplace. These include:

• Workers who can work from home;
• Shielding workers who are clinically extremely vulnerable to Covid-19;
• Workers who are required self-isolate.

The Government’s working safely guidance says that while workers who are simply clinically vulnerable can be asked to attend the workplace, they must be given the safest possible roles where they can maintain social distancing (2m or 1m with mitigations).

Employers must ensure that the measures they adopt do not discriminate on the basis of protected characteristics, including age, disability and pregnancy.

Health and safety law offers special protection to new and expectant mothers who must be suspended on full pay if they cannot be offered work that is safe.

Issues

Some issues have arisen with the approach, including:

• Employment lawyers have questioned whether the UK Government’s working safely guidance properly reflects the legal position on the requirement to provide personal protective equipment (PPE).
• As public health is devolved, businesses in Scotland, Wales and NI will need to operate in accordance with the relevant devolved lockdown regulations and government guidance. Meanwhile, health and safety law is not devolved in Scotland and Wales. Ultimately, employers must undertake their own risk assessments and take account of all available guidance.
• There is a prospect that disagreements will arise between employers and employees over whether it is safe to return to work. In most cases, these issues will be best addressed by discussion, including with health and safety representatives.
• While schools remain closed, workers with parental responsibilities may struggle to attend work. While employees do have a right to emergency time off for dependants, the time off does not need to be paid. While workers with caring responsibilities could ask to be furloughed, this is a decision for their employer. The Prime Minister has said he would expect employers to be understanding.

Whistleblowing

Employment law offers a range of protections to whistleblowers who make ‘protected disclosures’. However, there are detailed rules on what sorts of disclosures qualify for protection. The disclosure must relate to particular subject matter and must be made to one of a number of groups of people listed in legislation. This includes the Health and Safety Executive, local authorities and MPs.

There are additional tests that must be satisfied if a worker makes a disclosure otherwise than to a person listed in the legislation. These tests would need to be satisfied, for example, if a worker makes a disclosure to the press or on social media.

• Commons Research Briefing CBP-8916
• Author: Daniel Ferguson
• Topics: Business, Diseases, Work & Incomes

Download the full report

• Coronavirus: Returning to work (PDF, 1 MB)