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Return to Work v Health & Safety arguments

Return to work - health and safety during Covid-19

Wednesday, May 13, 2020

We are now receiving mixed messages from the Government along the lines of return to work but stay at home.  We are not sure whether to use public transport or walk ahead of it.  As for the kids, they’ll get back to us on that one.  Still as long as we stay alert all will be well.

It is easy to mock and there are some real conflicting concerns at work here.  I set out below a few suggestions namely:

  1. If you have been working from home effectively these last seven weeks, then there is no reason for you to be compelled to work from the office.  You can object and indeed should make a flexible working request.
  2. If there is no safe mechanism for you to get in and out of work, then the debate ends there as well.  It is all very well suggesting that people cycle or walk, but from Blyth to Newcastle?  Consett to pretty much anywhere?
  3. The working environment needs to be safe.  There are all sorts of issues about open doorways, provision of hand sanitiser, screens, 2-metre exclusion zones, marked walkways.

For me, a very sensible suggestion would be an employer who takes your temperature on arriving and undertakes regular testing of the staff.  I appreciate we all have privacy rights but I believe the Health & Safety requirements of your colleagues trump your privacy rights.  Indeed, one might say an employer failing to institute such a system is failing to discharge Health & Safety concerns.

  1. The employer needs to take pictures of the office and prepare a clear written risk assessment and share it with the employees.
  2. Both sides need to remember that there are differing points of view and the grievance procedure is precisely the mechanism by which those points of view can sensibly be aired.  Approach it for once in an open-minded manner.
  3. Employers need to bear in mind that vulnerable staff suffering from asthma or diabetes might be covered by the equality act and disability discrimination provisions, which require reasonable adjustments to be made.  Everyone needs to be mindful of s100 Employment Rights Act 1996.

“An employee who is dismissed shall be regarded as unfairly dismissed if the reason for the dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably to have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”.

Health & Safety claims require no two-year qualifying period.  The right to claim is immediate upon employment commencing.  Furthermore, there is no capped limit on the value of the claim.  Bearing in mind the unemployment market claims might now be worth significant sums of money.

Ultimately, an Employment Tribunal may have to adjudicate upon matters if you can’t agree them.  A Tribunal will look at events with the benefit of hindsight and it will balance risk objectively.  As best you can, so should you.

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