Staying alert and safe (social distancing) guidance issued
Following the Prime Minister’s address to the country last night, the Cabinet Office has issued guidance on staying alert and safe (social distancing) together with its plan to rebuild the UK.
As we have seen over recent weeks with the Coronavirus Job Retention Scheme, this guidance will likely be updated as the days go by; but, for now, it should be regarded as compulsory reading for employers and employees alike.
The main takeaway from the announcement was the change in tone of the advice to employees, who are now being actively encouraged to go to work if they cannot work from home.
However, the legal position is not that simple as employees can refuse to return to the workplace if they reasonably believe that their health and safety would be in danger if they were to do so.
This means that employers who seek to force employees to return to their place of work without taking appropriate steps to mitigate the risks presented by Covid-19 will very likely fall foul of sections 44 and 100 of the Employment Rights Act 1996 if they subsequently subject their employee to a detriment (or even dismiss them) as a result of a refusal.
Whether an employee’s refusal to return to work as a result of perceived health and safety concerns was reasonable or not is a subjective test. The employee needs to show that he or she believed there was serious and imminent danger based on the information available to them at the time.
Therefore, any employer who is considering calling employees back into the workplace needs to demonstrate to their workforce: the steps they have taken to ensure their safety; and how they have complied with the latest guidance from the government.