1. What rights do employees have within the return to work plan?
While it is up to the employer to prepare and implement a return to work plan for the organisation including key decisions regarding return dates etc, consultation and collaboration with trade unions and employees are vital to the effectiveness of the organisation's Covid-19 risk assessment and to ensure good industrial relations are maintained during this continued period of disruption. If arrangements for return to work involve a variation to an employee's terms and conditions of employment, that variation requires not only consultation but also the agreement of the employee, whether it is achieved at a collective level with a recognised trade union or individually with the employee directly.
2. Could an employee take legal action?
Where an employee has concerns about returning to work relating to their health and safety, they should engage with their line manager and if the issue cannot be resolved through dialogue or agreement, the employee should consider formalising their complaint via the grievance procedure so that where possible these issues can be investigated and resolved internally to the satisfaction of both parties. If an employee unreasonably refuses to return to work, they may be liable to disciplinary action for unauthorised absence but it is anticipated that this should be only in exceptional circumstances and that where an employee has genuine concerns about returning to work, that consultation will take place and subject to operational requirements, a period of annual leave or unpaid leave could potentially be explored to alleviate immediate concerns. If an employee is disciplined or dismissed for refusing to return to work, they should exercise their right of appeal in relation to any disciplinary sanction and potential legal action could include unfair dismissal, public interest disclosure detriment/dismissal or constructive dismissal if the employee reasonably considers they had no alternative but to resign from their employment in the circumstances. If an employee were to catch Covid-19 at work and there are concerns about the adequacy of the health and safety standards in the workplace, the employee could potentially pursue a personal injury claim against their employer.
3. What if your children are not back to school until a later date?
An employee who is unable to return to work due to caring responsibilities should discuss their individual circumstances with their employer. Consideration should always be given in the first instance to whether the employee's job can be done remotely from home and if not, whether there are any alternative roles available that the employee could do remotely from home, even on a temporary or reduced hours basis. Check if furlough arrangements are available.
4. Should employers expect financial help?
No specific financial support has been made available for this beyond the grant and loan schemes currently available for businesses as a result of Covid-19 disruption and it is expected that employers will essentially shoulder the costs of the additional planning, cleaning and alterations to workplaces to ensure appropriate social distancing measures are in place to protect the health and safety of workers.
5. As an employee am I entitled to ask for Personal Protective Equipment (PPE)?
Employees are entitled to ask for PPE if they consider it is reasonably necessary to enable them to safely carry out their duties but whether the request is granted will depend on the nature of the work being undertaken and the level of risk identified in the organisation's risk assessment.
6. Will employees feel a moral obligation to return to work if it's optional?
Quite possibly employees may feel compelled to return when their colleagues are returning but each person's individual circumstances should be considered when arrangements are being made for a phased return to work. Any employee who has concerns should raise them with their line manager and options such as requesting to use some annual leave or a period of unpaid leave should be explored to alleviate genuine concerns.
7. Will the format of the working day change?
Yes we expect that employers will need to consult with employees and trade unions in relation to temporary changes to working arrangements that are identified through risk assessments as being necessary to ensure social distancing arrangements and protect the health and safety of workers generally.
Louise McAloon is a Partner in Worthingtons Solicitors