With restrictions due to be relaxed, operators must look at legal and safety considerations before remobilising their workforce, especially for staff who may be reluctant, says Simon Mayberry
An establishment prepares for reopening following lockdown but faces unwillingness from a minority of staff, who are concerned about the risk of infection from returning to work. How can employers minimise the risk of refusals and the risk to the company?
- The Employment Rights Act 1996
- The Health and Safety at Work etc Act 1974
- The Workplace (Health, Safety and Welfare) Regulations 1992
- The Management of Health and Safety at Work Regulations 1999.
The remobilisation of staff poses potentially the greatest employment law challenge of the last 75 years. As the hospitality industry works towards the government's proposed dates for reopening of establishments, now is the time for employers to plan for the return to work.
While holistic preparation will be needed to cover all aspects of this challenge, principal among these is the requirement to ensure that it is safe for employees to re-enter the workplace. This has the twin benefits of ensuring employees will feel comfortable returning and minimise the risk of claims against employers.
Once employers have identified which workers will return (and in what order), they should look to communicate in an open and clear manner. If not all employees are required straight away, it would be sensible to seek volunteers to return first – this ensures that no one feels ‘forced' to return. Although minimal notice is required to call an employee back from furlough leave, it is far more effective to engage with workers well in advance.
Employers should check with employees for any specific concerns about returning to work and ensure that steps have been taken to act on these concerns
An initial email followed by a conversation will allow businesses to start the work of allaying any fears. Employers should undertake a robust risk assessment and put in place safe systems of working. This can form the basis of a list of the measures put in place to protect employees.
Employers should check with employees for any specific concerns about returning to work and ensure that steps have been taken to act on these concerns.
On the day of the return to work, meet with the employees on a socially distanced and individual basis to ensure that they are happy to return. Document this meeting and ask the employee to sign to confirm this. This provides a useful record of their agreement, along with a note of the steps taken by the employer.
By engaging with employees and actively showing the steps taken to reduce risk, employers can minimise unwillingness to return. If an employee still refuses to attend work, employers should take specific advice on their next steps, as this presents a risk of claims in relation to health and safety along with the potential for damaging publicity.
- Do: Prepare for the return to work by planning in detail.
- Do: Perform and record a risk assessment, putting in place ways of avoiding risk.
- Do: Communicate clearly and regularly with staff on the steps taken.
- Don't: Ignore staff concerns.
- Don't: Take a one-size-fits-all approach to employees. Consider their specific circumstances.
- Don't: Punish employees without giving due consideration to the consequences.
The risks of breaching health and safety laws are well-known. However, where an employee refuses to come to work because they reasonably believe that they face serious and imminent danger, they are likely to be protected from suffering any detrimental treatment or being dismissed. This would fall into a category of automatically unfair dismissals.
It is also possible that the act of bringing the concern to an employer's attention may amount to whistleblowing, affording protection from detrimental treatment. Compensation in such circumstances is uncapped and presents a real risk to a business.
Simon Mayberry is a senior associate at specialist employment law firm LexLeyton
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