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Employment law for employees & Employment law for employers

Office closures in the current lockdown

We were all keen to wave goodbye to 2020 and looked forward to a better new year. Sadly, 2021 has not, so far, lived up to our hopes as we endure a third national lockdown. Employers must once again decide whether to keep their physical offices open. Our Employment team explains.

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Are the new restrictions guidance or law?

The idea that the government’s directions for the third lockdown are ‘just guidance’ and not law is a myth.

As of 6 January 2021, The Health Protection (Coronavirus, Restrictions) (No.3) and (all Tiers) (England) (Amendment) Regulations 2021 enshrined the lockdown restrictions in law. The effect of which is best summarised by the government website: ‘you must stay at home’.

If individuals cannot ‘reasonably’ work from home, however, then they may leave their home to attend work. The word ‘reasonably’ does not make this exception more flexible than the rules of the first lockdown, as the wording is very similar. This stay at home order should, in our opinion, be treated with the same gravity and not doing so is risky.

Primary considerations for employers

Health and safety is paramount and employers should, where possible, seek to agree arrangements with its employees. Where agreement is not possible and an employer requires an employee to attend the workplace despite their reservations, employers need to be aware of section 44 of the Employment Rights Act 1996 (ERA). Section 44 states that employees must not be subjected to a detriment because they have a reasonable belief that attending the workplace poses an imminent and serious danger to their health and safety and have raised this concern with their employer.

For example, an employer having failed to implement a social-distancing policy or to provide appropriate PPE. If an employee refused to return to the workplace because of their concern, the employer must not subject the employee to detriment such as disciplinary action or withheld pay. To do so could be grounds for an Employment Tribunal claim.

For a claim to the Employment Tribunal related to s.44 to succeed, it could be enough that the employee reasonably believed that being in the workplace presented a threat of imminent and serious danger. Employers need to be aware that it does not necessarily matter if the employee was mistaken and that the workplace was in fact safe.

If work really cannot be done from home, alternatives to requiring an employee to attend the place of work include:

  1. Placing the employee on furlough if possible (but they must not suffer a detriment for raising a concern so furlough payments should be topped up to 100% of salary);
  2. Agreeing a flexible working arrangement to minimise the perceived danger, such as the employee travelling outside of rush-hour;
  3. Discussing what would make the employee feel safe and implement the employee’s suggestions where possible; or
  4. Agreeing that the employee should use their annual leave until they feel comfortable to come back to work.

Whether employees have raised concerns or not, the employer’s basic duty to protect the health, safety and welfare of its employees must be considered in any decision related to the workplace and these should be Covid-secure as far as possible to minimise the risk of an employer breaching this duty (see our 10 Tips for making an office Covid-secure here).

Our recommendation

We suggest that employers refresh the provisions taken during the first lockdown and replicate these where possible. The default position is therefore to close the workplace and consider any exceptions on a case-by-case basis.

If you have any questions about safety in the workplace, returning to work or any other employment related queries then the Collyer Bristow Employment Team is on hand to help.

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Tania Goodman

Partner - Head of Employment

tania.goodman@collyerbristow.com



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