COVID-19 – Pitfalls for Employers when staff return to work

Employers are at great risk of legal exposure as they bring staff back into the physical workplace, having either been furloughed or who have been working from home during the period of lockdown. They could find themselves exposed to a range of employment tribunal claims if they do not take into account individual considerations, and instead adopt a blanket approach and insist that all staff return to work. Any such employment tribunal claims are also likely to be of interest to the media and could be widely reported resulting in reputational damage to such employers along with the cost of defending those claims.
Here are some of the areas where we believe employers are likely to be at risk.

Disability Discrimination
Employers need to be careful when asking staff with pre-existing medical conditions to return to work and this includes staff who are shielding. If a member of staff in this situation refuses to return to work then employers need to consider making reasonable adjustments for example by changing their duties to enable such staff to work from home. If the Employer refuses to pay the employee, places them on unpaid leave or even dismisses them then this could give rise to a claim for disability discrimination and also claims for constructive/unfair dismissal if there is sufficient continuity of employment.

Sex Discrimination
Employers also need to be wary of staff who have child-care commitments and whose children cannot attend school or in circumstances where they have no childcare provision. If these employees are treated less favourably by employers because they are unable to attend work at contracted hours then this can give rise to claims for indirect sex discrimination if women are placed at a particular disadvantage.

Health and Safety
Claims can be made from employees who believe that their health and safety has or is being compromised. It is recommended that employers plan for staff returning to work to ensure that workplaces are adapted to accommodate social distancing, and that the risk of catching coronavirus is minimised as far as possible. There is separate Government Guidance on this that has been recently published for eight specific sectors including office-based staff.

Employers are also advised to implement staff training in this arena and to arrange external training providers to provide this even remotely by video conferencing facilities. Employees who believe that their health and safety is at risk can also bring claims for constructive dismissal, and both ordinary and automatic unfair dismissal if they are dismissed because they have raised serious health and safety concerns or breaches. Another worry for employees is travelling into work on public transport. Already we have witnesses images in the media where commuters are crowding out tube and train carriages combined with social distancing rules not being observed. An employees refusal to return to work over such fears needs to be dealt with individually and sensibly for example agreeing that the employee can remain working from home where at all possible or to stagger hours of work attendance.

Whistleblowing
It is most important to highlight that where staff blow the whistle on unsafe practices, health and safety risks, and raise genuine concerns, then this could in law amount to a protected disclosure if they are then treated unfavourably, suffer detriment and are dismissed. This can result in a whistleblowing claims combined with an automatic unfair dismissal claim where employees do not require two years’ continuous service.

It is recommended that employers continue to allow their staff to work from home wherever this is possible. If it is necessary for staff to have to attend work because work cannot be undertaken at home, then it is recommended that employers listen to the individual concerns of members of their staff and enter into dialogue with them to try and find a solution. Timely legal advice is also recommended as well.

If you have any concerns about staff returning to work then contact Steven Eckett, Partner and Head of Employment at Meaby & Co on 020 7703 5034 or seckett@meaby.co.uk