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COVID-19 – safe return to work and protection against discrimination

Ryan Bradshaw and Claire Powell discuss returning to work and the health and safety obligations of employers in the second of their three-part series on COVID-19 and employment rights.

PPE in workplace

Claire Powell and Ryan Bradshaw are lawyers who specialise in employment law and assess current pay challenges faced by disabled workers.

Return to work: health and safety 

Your employer has a legal duty to protect and safeguard your welfare and health and safety. See our previous blog on COVID-19 and your employment rights for an overview of employer obligations. 

This includes a duty to ensure that the working environment is safe. In June 2020, with the easing of lockdown, for many of us that will mean putting in place measures for a return to the workplace.

See our factsheet on health and safety at work during COVID-19 for more information.

Return to work: practical steps

Government guidance is available for employers to assist with the return to work. There are workplace specific guides and other general advice includes:
  • Carrying out a COVID-19 risk assessment in line with HSE guidance and consulting with workers and trade unions.
  • Develop cleaning, handwashing and hygiene procedures
  • Helping employees work from home
  • Maintaining two-metre social distancing where possible.
  • Where two metres is not possible, managing transmission risk – staggering working times, using screens or barriers, one-way systems in the office.

My employer hasn’t made any changes – what can I do?

Under the Health and Safety at Work Act 1974 it is an employer’s duty to do anything that is ‘reasonably practicable’ to protect staff.

If you are concerned that no changes have been made, you should raise these concerns with your employer. If you are nervous about speaking out, consult with colleagues, your trade union or any representative body in your workplace.

If your employer does not engage there are circumstances where you are able to share your concerns more widely. This is called whistleblowing and is protected by law. However, the circumstances are narrow, and strictly applied, so this should be done after seeking to resolve the issues with your employer directly.

If you have concerns about health and safety at work the prescribed body to raise your concerns to is the Health and Safety Executive.

I cannot social distance in my job, what do I do?

Raise any concerns with your employer and ask to see a copy of the risk assessment for your workplace and ask when it will be reviewed.

Speak to your trade union, consult any relevant guidance (government guidance and anything specific to your workplace) and keep track of any developments.

If you are required to work in close proximity with colleagues and customers you may wish to request that you are provided with suitable personal protective equipment.
 
Can I refuse to return to work?

Government advice is still to work at home if possible and a good employer should keep employees informed and aware of decisions to return to work.

If your employer has confirmed that you must return to the workplace it may be a breach of contract if you refuse. However, consultation between you and your employer is essential, and if your reason for your refusal is a valid one, there are protections in place.

If you refuse to return because you reasonably believe there is a serious and imminent danger to yourself and others and your employer treats you differently as a result you may have a claim against them under the Employment Rights Act 1996.

Return to work for ‘high risk’ groups

If your employer treats you less favourably than another member of staff based on a ‘protected characteristic’ (for example sex, race, disability, age, pregnancy/maternity) it is a breach of your rights under the Equality Act 2010.

If you are in the vulnerable category for COVID-19 your employer has a duty to make reasonable adjustments. This could be allowing you to continue to work from home; arranging for a route to work without public transport; or moving your place of work – e.g. from an open plan office to a private one.

It is very important that you make your employer aware of any relevant health conditions or personal circumstances that may affect your ability to return to work.

I am not in the vulnerable group but believe I am at a higher risk of COVID-19

If you feel unable to return to the workplace for a condition or personal circumstances outside the high-risk categories you should still raise your concerns with your employer.

If the risk is health related, explain why, and consider providing medical evidence from your GP to support your claim. There are those who feel that their race or ethnicity places them at a higher risk of infection. For example, reports have confirmed that people of Bangladeshi heritage are dying at twice the rate of those of white/Caucasian heritage.

Discrimination is not always immediately obvious, and if your employer is implementing procedures which are indirectly discriminatory towards you, for instance based on your race, this is still a breach of the Equality Act 2010. However, you should consider that there is a high bar for such claims and strong supporting evidence will be required.

I live with someone who is in the vulnerable category, but I am not

Again, communication with your employer is crucial, and the services already mentioned. See our previous post on working during COVID-19 for more information.

If your employer does not make reasonable adjustments you may still have a claim under the Equality Act 2010 for associative discrimination.

Associative discrimination is discrimination based on an individual’s connection with another person who falls under the protected group categories of Equality Act 2010 (except from marriage and civil partnership). An example could be an employee whose child has a health condition which places them in the vulnerable category, and the employee’s reasonable request to work from home is refused.

Return to work for parents or those with caring responsibilities

Your employer should be reasonable and proportionate, and not treat you less favourably than other members of staff. Unfair treatment could be a mandatory ‘back to office’ requirement for all staff, which has a disproportionately negative effect on female workers – who are more likely to have caring responsibilities.

Legally, all employees are entitled to time off work to assist a dependent who has fallen ill, or if there are exceptional circumstances, however this is not automatically paid leave.

You also have the right to make a request to your employer for flexible working (if you have been employed for six months or more) which they must consider.

If you are not able to reconcile your work and caring  responsibilities as a result of your employer’s decisions, you may wish to investigate the possibility of bringing a claim against them. However, time limits are strict, and just because you disagree with your employer’s decision it does not automatically mean that you have a valid claim.

A good employer will adopt a reasonable, practical approach to these challenging times and allow for inevitable changes in personal circumstances.

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