#AceHealthReport – May.17: “Robert Chote, chairman of the Office for Budget Responsibility (OBR), said April was probably the bottom of the crash as the government is now moving to gradually ease its lockdown restrictions.” Reuters Business reports: https://t.co/ev8JYUOhIE
#Coronavirus Report: Returning to work as lockdown lifted but after the law was changed to allow extra powers during the #pandemic what does this mean to employers and employees Now !
Published Monday, May 11, 2020: By House of Common Law
Has the law changed?
No, and the Prime Minister’s announcement does not indicate that there will be fundamental changes to the law at this stage.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the equivalent devolved legislation, make it an offence for a person to leave or be out of their home without a “reasonable excuse”. It is already a reasonable excuse to go to work if work cannot be done from home. This is not limited to ‘key workers’.
The Regulations also require businesses in certain sectors to close their premises except for certain activities. The Prime Minister did not suggest any immediate lifting of these restrictions, although he said shops may open in June and parts of the hospitality industry may open in July 2020.
What health and safety measures must employers take?
The Government guidance will not take the place of legislation. It would simply give guidance to employers on how they can fulfil their health and safety obligations in the context of Covid-19. The Health and Safety Executive (HSE) notes that employers who follow guidance will “normally be doing enough to comply with the law.” However, it is ultimately for employers to assess and comply with their legal duties.
Health and safety legislation sets out a range of obligations that are relevant in the context of Covid-19. These include:
- Carrying out risk assessments for coronavirus-related risks;
- Setting up safe systems of work, informed by the risk assessment;
- Providing information about health and safety risks;
- Cleaning and ventilating the workplace;
- Preventing, or adequately controlling, exposure to infectious diseases or, failing that, providing suitable PPE.
A number of organisations have published guidance on health and safety and returning to work, including Cloisters chambers and the TUC. Maternity Action has also published guidance on the specific protections for pregnant workers.
Can workers refuse to go to work?
All workers have an obligation to follow lawful and reasonable instructions given by their employers. However, under Employment Rights Act 1996an employee cannot suffer a detriment (e.g. loss of pay) or be dismissed if they leave or refuse to attend the workplace because they believe that there is a serious and imminent danger that they cannot reasonably avoid. Employees are also protected if they take reasonable steps to protect themselves or others from imminent danger.
The term ‘danger’ has been interpreted broadly. What matters is whether the employee reasonably believed there was a danger, regardless of whether the employer disagreed. An employee’s right to take steps to protect ‘others’ is not limited to other workers.
Whether, in the current context, an employee could refuse to attend the workplace will depend on the facts. An Employment Tribunal would be likely to give due weight to an employer complying with Government health and safety guidance. It is also possible that other factors, such the risk from taking public transport or a worker living with clinically vulnerable people, could be relevant.
What about workers with caring responsibilities?
The Prime Minister said that pupils might be able to begin returning to school from June. He suggested the process will be phased, with certain year groups restarting school before others.
There is no statutory right for workers to refuse to go to work because of caring responsibilities. While employees do have a right to a ‘reasonable amount’ of time off for dependents, this is only available for unexpected emergencies and is unpaid. It may be possible for workers in this position to ask to be furloughed or to take annual leave. As childcare responsibilities disproportionately fall on women, there may also be questions about indirect sex discrimination.
Barrister Rachel Crasnow QC has written about what considerations may need to be made for working parents.
Can employers keep workers on furlough?
While the Prime Minister has said that workers should be “encouraged” to go to work he did not suggest that the rules on the Coronavirus Job Retention Scheme have changed. Under the CJRS, employers can furlough workers and claim for 80% of their wages (up to £2,500 per month) from HMRC. The Scheme is set to last until at least the end of June 2020. Employers can furlough employees because of a “circumstance arising as a result of coronavirus”.
Employers whose work has reduced may choose to keep some or all of its workforce on furlough. However, this is a decision for the employer. An employer can instruct a worker to return to work provided it is in accordance with the employment contract and any furlough agreement.
#AceHealthDesk report ………….Published: May.17: 2020:
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