Back To Life: Issues For UK Employers As Employees Return To The Workplace

• Published date: 10 May 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: Bryan Cave Leighton Paisner LLP
• Author: Ms Lydia Octon-Burke

At the time of writing, the Government has published its provisional roadmap out of lockdown and employers are beginning to consider when and how employees may return to the workplace. This article considers some potential options and possible risks relating to a return to work.

Can employers force employees to return to work after lockdown?

It is a general principle of English employment law that employees must comply with reasonable management instructions from their employer. This would include an instruction to attend work.

Whilst health and safety considerations have obviously called this into question during the pandemic, a requirement to return to work may still amount to a reasonable management instruction, depending on the type of workplace, the employee concerned and how easily the employee's work can be carried out from home. To avoid potential disputes it would be sensible for employers to consult with staff as early as possible to discuss matters and try to seek agreement. This is particularly important if a return to work requires a change to any terms and conditions of employment, as that will require consultation. Employers should take care to consider each individual circumstance on its own merits and be as flexible as possible, being mindful of any risks of discrimination or health and safety concerns.

Employers should also bear in mind their duty to protect the health and safety of their employees, if and when they return to work. This includes carrying out a risk assessment of the workplace and implementing measures to mitigate any risks. Employers should also be mindful of employees or workers who raise concerns, as English employment law offers considerable protection in relation to health and safety. Under section 44 of the Employment Rights Act 1996 for example, employees/workers must not be subject to any detriment because of raising concerns or refusing to attend work for health and safety reasons. Section 100 similarly provides that any dismissal will be automatically unfair if the reason for dismissal is that the employee/worker has raised health and safety concerns or refused to attend work on health and safety grounds. Separately, employees/workers who raise health and safety concerns could gain whistleblower protection if their concerns are genuine.

It is likely that some employees will be anxious or concerned about returning to work, even once restrictions are eased. Employers should take steps to discuss concerns with...