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Can’t Work, Won’t Work – What to do

Employment Law Coronavirus

Tuesday, March 31, 2020

The Government ordered lots of workplaces (e.g. pubs, cafes non-essential shops) to close over the last couple of weeks but some remain open for business.

For those that businesses that haven’t been ordered to close, those employees who can work from home; must do so and employers are under an obligation to set them up so they can work from home.

What about those who can’t work from home, because the job doesn’t allow it (e.g. care workers, supermarket shop assistants etc). Firstly can they travel to work safely? For these purposes, one assumes that using public transport is safe. Secondly, is the working environment safe? This is a question of fact in case but you should think about whether there are sufficient hand washing facilities and hand sanitisers, whether the premises are being cleaned frequently (possibly with increased frequency), and whether employees are being kept 2 metres apart when working.

What happens if the working environment is safe and you want the employee to come to work but the employee doesn’t want to come to work because he or she is frightened?

Initiate a dialogue with the employee, seek to establish and resolve exactly what it is that is troubling them. Consider whether they or someone they live with has an underlying health condition which requires them to self-isolate or perhaps they are on the “shielding” list which also requires them to self-isolate. If that’s the case, you may need to look at what reasonable adjustments you should make under the Equality Act 2010 if the underlying condition is a disability.

If you believe you’re in the right you are entitled to say to the employee, that they can stay at home on unpaid leave. You might put them on furlough leave and pay if their work is not essential during the crisis but you need them to come back to work when its “business as usual.”

You can require them to take annual leave but you have to give them notice equivalent to twice the amount of leave they are required to take. For example; if you want them to take a week’s holiday, you have to give them 2 weeks’ notice of that requirement.

Beware of s.100 of the Employment Rights Act 1996 which makes it automatically unfair to dismiss someone if the employee reasonably believes they are in circumstances of danger. This includes cases of constructive dismissal, so if an employee reasonably believes they are in circumstances of danger and they resign in response to it they can still bring a claim. Employees do not need 2 years’ service to bring a claim and there is no upper limit in the amount of compensation that can be awarded.

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