The UK lockdown meant individuals could only attend their workplace where they could not reasonably work from home. But as we (hopefully) near the end of this terrible pandemic, businesses need to start thinking about a workforce return in a post COVID-19 world.
The idea of returning to work after nearly a year of ‘isolating’ for many may seem daunting. Naturally, many employers and HR professionals are concerned about the health and safety of their employees and want to ensure they do the right thing by them, but equally, this needs to be balanced against the commercial needs of the business for the workforce to return to work.
There are still so many unknowns and questions – ‘What if an employee refuses to return to work, can we dismiss?’ ‘Can we require employees get vaccinated?’ ‘Can we require employees to take a COVID-19 test before returning to work?’ It is important for employers and HR professionals to equip themselves with the right knowledge when preparing for a workforce return.
Here is our Q&A on preparing the workplace for a return to work in a post COVID-19 world.
‘Can we require employees to get vaccinated?’
In has recently been reported that Pimlico Plumbers will require all of its workers to get vaccinated before they return to work. This is however, not without its risks. At the time of writing, vaccinations are not mandatory in the UK. So if an employer dismisses an employee who refuses to get vaccinated, it is likely that they will have to defend the dismissal in such circumstances. Depending on the reason for refusal, the dismissal may also be discriminatory, if for example an employee refuses to get vaccinated on religious grounds. The Employment Tribunal will have to consider whether the employers request was reasonable weighing this against the concerns of the dismissed employee.
It is therefore important for employers to consider each individual employee on a case by case basis and consult with each employee on the advantages and disadvantages on getting the vaccination and consider these against the needs of the business.
‘Can we implement a policy which requires our employees to take a COVID-19 test at work or before returning to work?’
Whilst government guidance states that employers must not advise individuals without symptoms to get a test from the NHS, as there are only a limited supply of tests, employers may offer an alternative private provision.
Employers looking to implement a testing policy at work, should consider:
- The extent of the testing programme, including who will be tested, how many times will they be tested and what arrangements will be in place if an employee refuses a test. Consideration must also be given to data protections issues which arise.
- How will employers consult with staff about the testing programme? Do employers need to consult with employees only or Trade Union representatives and/or employee representatives?
‘We have an employee who is frightened of a return to the office, what do we do?’
If an employee is suffering with severe anxiety with the idea of a return to the office, employers should be sympathetic and try to look for ways in trying to overcome such fears. For example, an employer could offer flexible working, or allow the employee to take holiday or unpaid leave.
If an employee’s anxiety is exacerbated with the idea of travelling to work using public transport, an employer could offer extra car parking where possible, or arrange for them to temporarily work different hours to avoid peak travel times.
Consideration should also be given to whether the employees severe anxiety amounts to a disability under the Equality Act 20210. In this case, an occupational health assessment should be sought to determine whether the employee is disabled and what adjustments, if any should be made to assist the employee in continuing to work.
It is important to get advice at the right time in order to avoid the risk of claims being made in this minefield as we try to return what we regarded as “normal”.
Nick Hine, Employment Partner Constantine Law