COVID19 Employment Law Update #10
Going back to work after the lockdown
Putting aside the confusion inherent in the Prime Minister's advice that everyone who can go to work should go to work (unless they can't go to work), the reality of the moment is that businesses are indeed starting to call their employees back from furlough.
But the pandemic has not yet passed.
So what should employees do if they have concerns? How should employers go about this safely and fairly?
Here are a few answers to some of the common questions.
(please note this is legal opinion, not legal advice. If you need legal advice, please contact our clerks in chambers).
Do I have to go back to work if my employer calls me in?
Short answer: Yes
Longer version: As an employee, you have a contractual duty to provide the services that you were employed to provide. In the absence of any limiting provisions in your contract, as soon as your employer requests your return, you are contractually obligated to return.
Even if I know it isn't safe?
OK. There are some exceptions to the obligation to obey your employer's instructions, and one of them is where to do so could endanger someone's health and safety.
In the circumstances of a virulent virus still spreading and causing death around the country, there are no hard and fast rules that apply in every situation. Nevertheless, there are certain factors to consider:
Is the workplace itself safe? Has the employer devised and imposed careful measures and protocols to protect the safety of its employees? (read here for examples what an employer can do, and the government issued guidance
Could the role or a large part of it reasonably be performed remotely?
Are there any reported cases of the virus at work? If notwithstanding the measures taken, there are reported cases of the virus at work, it could be reasonable for an employee to conclude that the workplace is not safe (at least until it has gone the full 14 day incubation period without any further cases)
Do you as employee have any disabilities or specific heightened risk? The government still advises that people at particular risk (e.g. respiratory problems, diabetes and certain disabilities) stay at home. Therefore, if you fall into this category, it might still be reasonable for you to decline your employer's request
Do you live or have necessary close contact with someone at heightened risk? If you do, and it would not be practical for you to avoid that close contact, it might be open for you to decline your employer's request to come in to work if potential exposure to the virus would be unavoidable
An additional complication right now is the fact that travel by public transport in itself poses a serious risk given the near impossibility of social distancing on bus, tube and train.
When considering whether an employee can legitimately refuse to comply with a request to return to work without being considered to be in breach of contract, these (and other such relevant factors) have to be balanced in the equation.
If an employee refuses to attend even when the employer insists, what options does the employer have?
Once you have considered the balance of factors mentioned above, if an employer believes that it has taken appropriate safety measures and that the employee should return, there are various options open to you as an employer:
keep your employee on furlough using the government scheme - the government has extended the scheme to October (although it is not clear exactly what provisions will apply beyond 30th June)
require your employee work remotely if this is practical
put your employee on unpaid leave - there is no legal obligation to use the furlough scheme or to pay your employee if he or she is not willing or able to work. The leave can be for a specific or indeterminate period
give your employee a date deadline by which he or she must return and then take action if that deadline is missed
That action can be anything from a verbal warning to dismissal.
What should an employer do if it wants to dismiss the employee for not coming back to work?
Dismissal should be a last resort.
An employer should recognise that at Tribunal there is likely to be very close questioning as to the rationale and process followed for the dismissal.
Nevertheless, it is also a well established principle that companies are entitled to run their businesses without interference from the courts as long as they have acted fairly and reasonably.
Once an employer has given proper considerations to the relevant factors, if an employee still refuses to return to work in circumstances that an employer legitimately believes he or she should return, then dismissal can be effected by following a fair and reasonable procedure.
This will involve:
give the employee a reasonable deadline by which to return to work
if the employee does not return, invite the employee to a hearing setting out full detail of the issue being considered and the potential outcome, namely dismissal - the hearing can be done remotely
give the employee the opportunity to be accompanied (ie a trade union rep or work colleague can join the Zoom call)
hold the hearing, listen and actively consider the employee's point of view
reach a decision
write to the employee with that decision. If the decision is to dismiss, set out the reasons and give any applicable notice period and right to appeal
If the employee does appeal, it is important to hold that appeal with someone different to the dismissal decision maker. (Hire an external decision maker if necessary).
What would be the official reason for dismissal?
This is actually a very important question.
If the employer has work for the employee to do, which the employee is refusing, this cannot be classed as a redundancy.
In fact the employee's refusal could be classed as the refusal to obey a reasonable order, which can be classed as gross misconduct in certain circumstances. The relevance of this reason is that a dismissal for gross misconduct has certain consequences:
no notice period would need to be given
no notice pay would need to be paid
any shares etc which are dependent on 'good leaver' status would be affected
references could be refused
future employment applications could be affected by such a finding
Given the very extreme and particular circumstances of this coronavirus pandemic, my opinion is that dismissal for refusal to come back to work should only very exceptionally be classed as a refusal to obey a lawful order.
It is quite possible that an employer will be behaving reasonably in believing an employee should return to work, whilst the employee from his or her point of view is reasonable in refusing.
So, it is probably more advisable and certainly more humane for an employer to class such a dismissal as a capability dismissal ie the employee was unable to fulfil the duties of the job.
Such a dismissal would not have the impact of a gross misconduct decision.
What can an employee do if being required to attend work when it is unsafe to do so?
Concerned employees have various options.
They can refuse to attend and raise a grievance about the issue, inviting the employer to consider the grievance before making any final decisions.
They can and should put forward any reasonable proposals of steps that they feel should be taken in order to make it safe to attend work.
If employees attend work and suffer health damage as a result of an employer's failure to protect them (e.g. not sending other employees home, who are believed to have contracted the virus), this could give rise to a health and safety liability.
If, nevertheless, an employer requires an employee to attend work without taking sufficient measures to protect the health and safety of the employee, this could be considered a fundamental breach of contract entitling the employee to resign and clam constructive dismissal.
However, in the same way that a dismissal decision should be seen as a last resort, an employee will be expected to raise the issue and identify his or her concerns, giving the employer an opportunity to address them.
What can a dismissed employee do if he or she thinks the dismissal was unfair?
If an employee has 2 or more years of service, this gives unfair dismissal protection rights, meaning the employee can pursue a claim for unfair dismissal on the grounds that the dismissal was not fair and reasonable in the circumstances.
If an employee has less than 2 years of service, generally there is no right to pursue a claim of unfair dismissal, which leaves such an employee with little if any remedy for dismissal in these circumstances.
However, there are still potential options available:
If an employee considers that his or her health was in serious and imminent danger, which could not be avoid expect by refusing to attend, there may be a claim for automatic unfair dismissal. In my opinion it is unlikely that this pandemic circumstance will fit that definition, but this has not been tested and I, for one, would be willing to argue it (though the case would likely fail in anything other than extreme and clear cut circumstances)
if the employee falls into a protected class (race, sex, disability, age) and has been treated differently to people not in that class, it may be possible to argue discrimination
if the employee has a disability, and steps that should have been taken to protect the employee, have not been taken, a claim for failure to make reasonable adjustments could be pursued (or even perhaps indirect discrimination)
if the employee considers that he or she was dismissed because the employer didn't like the fact that a health and safety complaint was made, then a claim for automatic unfair dismissal (for whistleblowing/protected disclosure) could be made
None of this is straightforward and much of it is untested - all of which goes to say, if you are an employer or an employee facing this scenario, you should speak to a lawyer (and I happen to know a good one!)
For more specific advice on employment law and the coronavirus pandemic, feel free to reach out to our clerks in chambers on 0207 936 3030 or firstname.lastname@example.org
1 Essex Court