Returning to the workplace – a legal guide

Pinchinthorpe Hall

Sally Lomas-Fletcher, associate solicitor with Stockton-based Jacksons Law Firm in Stockton, with some useful advice for employers looking to take staff back into their places of work…

The pubs, gyms and shops are open again, the commute to work traffic has suddenly got heavier and many of us are cautiously peeping out of our houses and looking at returning to the workplace, some with trepidation and some with optimism.

Here we go again – but, hopefully, for the last time and more successfully than in the summer of 2020.

At present the government’s advice is somewhat mixed; work from home unless that’s not possible; in which case return to the workplace with Covid-secure measures in place (hands, space, face, fresh air). What should employers and employees expect?

Some employees will by now have been vaccinated at least once, however don’t forget that the younger members of your workforce are probably still waiting for their vaccinations.

Employers risk claims of indirect discrimination if they only allow vaccinated members of staff to attend the workplace to the disadvantage of younger members of staff or those who are pregnant or who have a disability or hold a religious of philosophical belief that means they can’t or won’t have the vaccine.

Indirect discrimination may be lawful where it is objectively justified however that is a very high threshold to meet and where there are other measures that an employer can take to make the workplace Covid safe then it is unlikely to be lawful to insist that only those who are vaccinated attend the workplace.

Employers should complete a Covid-19 risk assessment or update those they already have. They should consult their staff on those risk assessments and ensure that they are published. They are also a useful tool to use when encouraging a reluctant employee back to work.

You may also wish to consider inviting the reluctant employee into the workplace when it is empty or quiet so that you can walk them through the changes that have been made to make the workplace safe.

Typically these will include things like keeping a register of staff and visitors to the workplace, additional signing in requirements for visitors, plentiful hand sanitiser and cleaning products, two-metre safe distance signage and floor tape, screens between work stations, one way systems, face coverings to be worn when moving around the office, limiting the number of people in the workplace or areas of the workplace (such as kitchens, bathrooms, post rooms, print rooms etc), additional deep cleaning regimes and where possible, not sharing equipment or work stations.

Whilst it’s not mandatory, some employers are asking employees to take lateral flow tests before entering the workplace and they may decide that entering the workplace without having taken a test beforehand is an act of misconduct which may result in disciplinary action.

I suggest that employers exercise caution if they have employees who do not wish to take a test.

If they can continue to work from home then they should be allowed to do so for the time being.

Where that is not possible, employers should seek to understand why an employee doesn’t want to take the test and address any concerns as thoroughly as possible.

As always, its advisable to have written policies in place to govern such situations.

Sally Lomas-Fletcher
Associate solicitor, Jacksons Law Firm