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The Realities of Going Back to the Desk

As UK businesses begin to re-open their doors, employers are having to embrace a range of new challenges.

At the top of that list will be the additional protections that COVID-19 has forced organisations to put in place. These are things that an employer, obliged to safeguard the health and safety of its workforce, must understand and implement rigorously. Not only is a safe system of work a legal requirement, it goes to the heart of workplace culture. Employees are going to need to trust their employer to provide a safe working environment in which risks are reduced to their lowest level. This is especially important if trust and confidence needs to be rebuilt following difficult decisions about furloughing and changed terms and conditions. It could be a way to start over.

We stray from employment law into health and safety law now. As it is impossible to prevent the corona virus from being brought into the workplace, employers have to take steps to protect people from it. A thorough risk assessment is vital (it’s a legal requirement), as are practical measures aimed at reducing the chance of infection. Suggestions from the Health and Safety Executive include:

  • staggered arrival, departure and break times
  • good handwashing facilities, including at entrances and exits
  • floor tape or paint to mark out two-metre distances
  • keeping the number of people in each work areas as low as possible (one person per work area is ideal
  • screens to create physical barriers
  • have people working side-by-wide, rather than face-to-face.

The government has issued guidance for different types of workplaces. It makes essential reading:

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

What if an employee refuses to come back to work?

Government advice continues to be that if a person can work from home, they should do that. So, just because the workplace is now open doesn’t mean that employers should take the view that it is business as normal and bring everyone back in at once or at all.

It may be safer and more manageable to try and restrict numbers at first but employers should make sure to be fair when deciding who should and should not be asked to return. Consistency is key to fairness and equality.

If homeworking is working for employees and employers, why change it? Talking to employees about the way forward could help to restore trust and could enhance the employment relationship.

Employers cannot force someone to come back to work if they don’t want to. Employers may think about disciplining employees who refuse to come back to work but this could carry risk. There will be many situations in which that will not be appropriate and which could lead to claims, including for discrimination and constructive unfair dismissal.

Listen to objections. Why do employees not want to return to their desks? They may have childcare responsibilities that cannot be delegated. Or employees may have health issues that make them more susceptible to the virus. They could be shielding. Consider the risks that your workplace, and the employee’s commute, would present and whether those risks could be further reduced.

If an employee feels that returning to work would present the risk of ‘serious and imminent danger’, they may have a legal basis on which to refuse to come back. However, in other situations and where an employer has extensively assessed and minimised risk, it could be unreasonable for an employee to refuse to come into work based on perceived danger. But disciplining employees should not be the starting point. Each employee’s situation should be assessed individually. What is fair and reasonable in one case may not be in others.

There is no going back and be prepared for a reluctance to do so and on a final positive note, many workplaces may be all the better for it.


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Rhian Radia's picture

Rhian Radia joined Bishop & Sewell to head up the employment team in 2019.

She has a City background and over 19 years of experience practising employment law. Rhian advises both companies and senior individuals on a full range of employment matters and is well placed to see employment issues from every perspective. She works closely with HR teams to promote claim avoidance and manage risk. Rhian is committed to understanding the specific needs of her various clients and has particular experience of advising in the financial services, healthcare and media sectors.