Posted on 11th June 2020

Do you find yourself either on furlough leave or working from home?

With lockdown being slowly lifted, are there whispers of your boss wanting you back on work premises following furlough leave?

You may be asking whether your employer can make you come back to work when there is still a risk of contracting COVID-19.

Read on to find out more about your employment rights.

What is the Government saying?

Employers are still being encouraged to enable people to work from home where possible. Where working from home is not possible, the Government is attempting to get people back to work, and has set out guidance for employers to ensure that they have social distancing measures in place.

The Government has published “Secure Guidelines”, which contain both generic steps and sector-specific guidance.

There are 8 separate guidance notes for the following industries:

Construction and other outdoor work
Factories, plants and warehouses
Lab and research facilities
Offices and contact centres
Other peoples’ homes
Restaurants offering takeaway or delivery
Shops and branches

The guidance includes 5 general steps for all employers to action:

– Do a COVID-19 risk assessment
– Develop hygiene procedures
– Help people to work from home
– Maintain 2m social distancing (where possible)
– When 2m distancing is not possible, manage transmission risk

Employers should be paying attention to this guidance, and implementing the measures applicable to your work arena.

There is separate guidance again for educational and childcare settings and public transport operators.

What are my rights?

Under employment law, you have a right not to suffer a detriment, or be dismissed, as a result of refusing to return to work when you reasonably believe there to be a serious and imminent danger which you could not reasonably be expected to avoid. These rights are set out in sections 44 and 100 of the Employment Rights Act 1996.

So, ultimately, you cannot be compelled to return to work if you have a reasonable belief that there is a serious and imminent risk to your health. Further, you are protected from any reprisals from your employer for refusing to return in those circumstances.

If you do decide not to return to work in the face of a requirement from your boss, it would be sensible to set out in writing your decision and the reasons for it.

What do I do if I am not comfortable with the measures my work has put in place?

If your employer has followed the Government guidance on social distancing measures, it will be difficult for you to argue that you had a reasonable belief that you would be facing serious and imminent danger in returning to work.

If your boss has not implemented the measures that the Government has advised, but has asked you to come back to work, then the best thing to do is to have a (socially distanced!) conversation with them first. It may be that steps can be taken to ease your concerns.

Ultimately, if your employer still refuses to take the steps set out above, the Government has suggested that you report this to your local authority or the Health and Safety Executive. Those bodies have the power to make your employer do more to ensure your safety. See paragraph 4 of the Government’s FAQs.

What can I do now?

It is an unsettling time at the moment, particularly if you feel unsafe in your work environment following furlough leave. If you have concerns about going back to work or questions about your employment rights, please get in touch with us and we can connect you with a specialist employment lawyer.

NOTE: Nothing in this blog constitutes legal advice. If you need advice about your rights, you need to seek legal advice from a qualified lawyer at Novate.