On Sunday, the PM announced that emplpyees who are unable to work from home are to be actively encouraged to attend the workplace from today, Wednesday 13 May 2020. He added that returning workers should avoid public transport if possible. /1

There is no expectation that businesses that were instructed to close should re-open and those who can work from home should continue to do so. /2

For many people, the prospect of returning to work raised immediate concerns about whether that could be done safely. Unsurprisingly, this caused consternation amongst unions and employees, with many genuinely fearing for workers safety upon returning to the workplace. /3

The Govt has published guidance to help employers in different sectors create what it describes as “COVID-secure” workplaces. But what if an employee returns to work but believes their employer is not adhering to the Govt’s advice by providing a safe work environment for them? /4

If the employee leaves work due to a perceived threat of being at risk of infection, are they protected against detriment/dismissal? We wanted to briefly try to clarify the position. /5

An employer has to do all that it reasonably can to set up a system of safe work and then ensure that it is implemented. Employers must first undertake a COVID-19 risk assessment tailored to its workplace. /6

They must then set up a safe system of work, as identified by the risk assessment and ensure that the system is followed. Training managers and supervisors will be critical. /7

If an employer fails to take reasonable steps to implement social distancing; make necessary PPE available; or provide adequate facilities for washing hands/cleaning desks, etc, that may create "circumstances of danger" by failing adequately to protect employees from infection /8

What if an employee believes that the danger they face, whether in the workplace or during their travel to work on public transport or otherwise, is serious and imminent; has reasonable grounds for that belief; and cannot be reasonably expected to avert that danger? /9

In those circumstances, we believe that the employee may absent themselves from the workplace and will be protected from detriment or dismissal if they do so. /10

However, the judgments in this area are necessarily fact-sensitive and it is not absolutely clear that putting someone at risk of infection in this way would satisfy the “serious and imminent” test. /11

An employee who makes a decision to leave must understand that they may risk disciplinary action or termination even if that is a course which the employer should not properly adopt. /12

Employees who are unfairly disciplined or dismissed may ultimately be able to challenge any such decision in an Employment Tribunal but no immediate practical remedy will be available. A tribunal case could take 12 – 18 months to conclude. /13

Employees should take immediate action by lodging a grievance as soon as possible and highlight their concerns in writing. This will then start a formal process which the employer will need to engage in./14

Where an employee is a member of a Union they should take the advice and seek the support of their Union wherever possible and in any event should, if at all possible, obtain advice on the particular circumstances. /15

You can find this material set out in a PDF document here: https://www.dropbox.com/s/wqrx21nflwolfm3/Covid%20-%20Return%20to%20Work%20Employment%20Law_v3.pdf?dl=0