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Covid-19 advice

COVID-19 ADVICE

Returning to work: workers’ rights and employers’ obligations

As workplaces reopen after lockdown, many people are worried about their safety and that of their colleagues, clients or customers. Here we set out some general advice in response to frequently asked questions. Employers should consult, communicate and explain to their staff what measures are in place to keep them safe.  However, if your employer isn’t following government guidance or is putting you at risk, you may have employment rights – including whistleblowing.

How can I check if I should return to work?

The Government has created a helpful tool to “Check if you should go back into work” which you can find here. You will be asked a few questions about your type of work, health and household. Please note, this tool only applies for England.

Can my employer insist that I return to work?

From 1 August, the English Government lifted the guidance to work from home and has given more discretion to employers to bring people back to work. One option is to continue to work from home, particularly as this solution has worked so well for many people over the past few months, or you can now be asked to return to work if it is “Covid-secure”.

You should ask your employer what measures they have implemented to make the workplace safe and how they are complying with government sector guidance.

If you believe that your employer has not put in place sufficient measures and you are worried about the health and safety of you and your colleagues, and potentially the public, you can raise your concerns as a whistleblowing disclosure. Please contact Protect for advice if you are unsure what to do.

The guidance in Scotland, Wales and Northern Ireland remains to work from home if you can.

Can I refuse to go to work if I'm fearful for my health?

An employee has the right not to suffer detriment if you refuse to return to work where you reasonably believe that you are in serious and imminent danger which you cannot reasonably have averted, or you take appropriate steps to protect yourself or others (Section 44 Employment Rights Act 1996 (“ERA”). This means you cannot be disciplined, or dismissed under s.c 100 ERA, for acting in accordance with this law.

If your employer is not following the government guidance on safe workplaces, you should seek advice.

However, the law in this area is complex. The cases are highly-fact sensitive and you must seek legal advice on this law and how it applies to you, if at all, before you take any action. You can contact ACAS, LawWorks or your union for advice.

It is not advisable to simply not to turn up for work as you may be in breach of your contract.

I have to use public transport to get to work, but I'm worried about my health

The Government guidance for England now states that you can use public transport for any reason but you are encouraged to use alternative forms of transport where possible, and observe social distancing if you do use public transport. You should discuss with your employer what changes can be made to make it safer for you to travel to work. This may be a change to your working hours, staggering shifts, or working from home.

The rights in s 44 ERA and s 100 ERA may be relevant but there is no clear authority that travel to work is covered by these laws. You should contact ACAS or LawWorks for advice.

If you choose to use public transport in England, you must wear a face covering (see here).

The guidance in Scotland, Wales and Northern Ireland is different.

Can my employer call me back to work if I cannot arrange childcare?

This is a complicated area of law but workers who struggle to find childcare have a right to emergency time off for dependants, but the time off does not need to be paid. You should seek advice about your rights in this situation. Working Families is a charity that offers advice on flexible working and work-life balance. You can contact them here.

You may also have rights under discrimination law in this situation and you can seek advice from EASS.

Must I attend work if I'm clinically vulnerable or extremely clinically vulnerable?

In England, Scotland, Wales and Northern Ireland, the government guidance for the extremely clinically vulnerable to shield had been lifted. Click on the country you need to find out more.

The guidance means that extremely clinically vulnerable staff can return to work, but they should continue to work from home if possible. Your employer should offer you the safest available role, discuss how to keep you safe, and comply with sector-specific guidance. You can check the guidance for sectors here. However, it has been commented that not all of these guides are properly updated.

You should seek legal advice from ACAS, LawWorks or a trade union if you are extremely clinically vulnerable. You may also have rights in discrimination law so consider contacting EASS for advice about this.

Must I attend work if I live with a vulnerable person?

The Government has produced guidance for those living with vulnerable persons, particularly extremely clinically vulnerable persons. If you are worried about going to work whilst living with a vulnerable person, you should speak to your employer about alternative measures they can put in place to help you. Employers will need to comply with their health and safety obligations and to conduct a risk assessment.

I have been furloughed but my employer is still asking me to work

The furlough scheme has changed from 1 July. Government guidance is clear that employees furloughed can return to work on reduced hours while remaining on the Coronavirus Job Retention Scheme. Employers and furloughed workers can agree any amount of time or any shift pattern, but the employer must confirm this in writing. The scheme will then pay the balance between part-time work and furloughed time up to 80% of pay.

From 1 August, the Government will no longer meet the cost of National Insurance and pension contributions for furloughed employees. From 1 September,  the employer must contribute 10% of any furloughed employees salary which increases to 20% from October. The Coronavirus Job Retention Scheme will end on 31 October 2020.

Employers who apply for the Coronavirus Job Retention Scheme but insist that you work during periods where you are supposed to be furloughed (i.e. not supposed to be working), beyond certain types of training, could be breaching Government guidance. You should consider obtaining legal advice about your rights in furlough and your rights to refuse to do work in these circumstances. For questions on the Coronavirus Job Retention Scheme itself you can contact the HMRC advice line.

The ACAS website is a useful tool and LawWorks can direct you to free local law centres to help you with this issue. You can also consider raising this as a whistleblowing concern with your employer or with HMRC directly.

Do I have a right to work from home?

Currently, there is no law that gives you the right to work from home (although there is discussion about introducing such a right). Nevertheless, you can make a formal written request to work from home to your employer. In addition, all employees with 26 weeks’ service have a right to request flexible working – this includes working from home.

How can I make sure my employer is making the workplace safe?

Your employer should carry out a specific Covid-19 risk assessment which assesses the risks, sets up a safe system of work in light of those risks, implements the system, and reviews the system. This is a legal requirement for employers with 5 or more employees. Government guidance suggests to publish the risk assessment on the employer’s websites (organisations with more than 50 employees are expected to do so).

Your employer must consult with you about the measures it proposes. You can ask to see the risk assessment, ask your employer to explain why they have concluded it is safe to return to work, and negotiate changes. Your employer should consult with trade unions that they recognise or health and safety representatives. Employers should take additional steps to protect vulnerable workers.

If you believe that the health and safety of you and your colleagues is at risk, you can challenge the employer by raising the issue as a whistleblowing disclosure to a line manager or with designated contacts in a whistleblowing policy.

You can also contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about raising these issues.

What are my health and safety rights at work?

This is a complicated and vast area. We strongly advise that you seek professional advice on this question from ACAS, LawWorks, or a trade union if you are a member. There are relevant rights in The Employment Rights Act 1996 and The Health and Safety at Work etc. Act 1974, and every contract of employment contains an implied term that the employee will take reasonable steps to ensure the safety of their employees. There is also secondary legislation and industry specific laws that may be relevant for you.

Do I have a right to PPE?

PPE is considered a last resort; only where workplace risks cannot be eliminated by other measures, should PPE be provided. However, Government guidance states that PPE should be reserved for workers in the health and social care sectors and is not required for other workers, other than in close contact services (e.g. hairdressers).  Social distancing and other measures in the guidance should be considered to reduce the risks of Covid-19 in other workplaces.
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If your employer’s risk assessment shows that PPE needs to be provided, it must be supplied at no cost to you.

Do I have a right to face covering?

Face coverings are not considered PPE and are generally not mandatory in the workplace (see here). Your employer should consider the Government guidance for your sector and any alternative measures to reduce the risk of Covid-19 when deciding whether face coverings are needed. Government guidance is frequently updated, you can keep up-to-date with the latest guidance here.
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The Health and Safety Executive (HSE) says your employer should support you if you choose to wear a face covering at work.
.If you believe the work you do requires you and your colleagues to be provided with PPE or face coverings, you should raise the concern as a whistleblowing disclosure to a line manager or with designated contacts in a whistleblowing policy. You can also contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about raising these issues.

Can I sue my employer if I contract Covid-19?

You may be able to bring a personal injury claim against your employer and argue that it acted negligently. This is a difficult course of action to take and you must seek professional legal advice before taking any action.

It is a criminal offence to fail to comply with health and safety law, and an employer could be fined for failing to do so.

How can I raise concerns about the health and safety of my colleagues and I?

If you reasonably believe that the employer is endangering the health and safety of you and your colleagues, and potentially the wider public, you can raise your concerns as a whistleblowing disclosure.

We suggest that you do this in writing to a line manager or designated contact in a whistleblowing policy, specifying in detail what your concerns are. You may have the protection of  the UK whistleblowing laws when doing this, depending on the circumstances.

You can also contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about raising these issues.

What can I do if my employer does not listen to my concerns?

Whenever a worker raises concerns about wrongdoing or risk at work, the employer should take them seriously and ensure that the worker will not suffer detriment as a result.

If your employer ignores or denies your concerns, you may be able to escalate it to a more senior manager or approach a regulator, such as the local authority or Health and Safety Executive (HSE).

You can contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about raising these issues.

What is the government guidance for my sector?

The Government has produced guidance for 14 specific sectors to create “Covid-secure” workplaces. You can find this guidance here and check what steps your employer should be taking to keep you safe. As a minimum, your employer must conduct a Covid-19 risk assessment, maintain social distancing, or otherwise manage transmission risks, and clean more frequently.

Some businesses in England must remain closed, you can find them listed here.

I work in the health or care sector and my employer has run out of equipment to test Covid-19

You will be able to raise your concerns with your employer whether that’s a line manager, a designated contact in a Speak Up or whistleblowing policy or a Freedom to Speak Up Guardian (FTSUG). To find your NHS employers FTSUG please see the National Guardian’s Office FTSUG Directory.

In Scotland concerns about PPE can be sent to covid-19-health-PPE@gov.scot and in England you can call 0800 915 9964 or email supplydisruptionservice@nhsbsa.nhs.uk.

You can also contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about raising these issues.

I work in the education sector and my school is about to reopen, what can I do if I feel unsafe?

The Government has issued guidance on implementing protective measures in education and childcare settings. You can ask your employer how they intend to comply with this guidance and keep staff and pupils safe.

The Department of Education has created a ‘Coronavirus Helpline’ for queries about Covid-19, please call 0800 046 8687 (Monday-Friday from 8am-6pm) or click here.

Covid-19 and the Employment Tribunals

Due to the Covid-19 pandemic Employment Tribunals across England, Wales and Scotland, and Industrial Tribunals in Northern Ireland have been heavily disrupted. For the up-to-date information on how Covid-19 is affecting tribunals in your area follow the links below:

Employment Tribunals in England and Wales click here

Employment Tribunals in Scotland click here

The Industrial Tribunal in Northern Ireland click here

What is the situation if I've returned from a country not on the exempted list?

The Government guidance on travel restrictions and travel corridors can be found here.

The law on international travel and quarantine may require you to self-isolate for 14 days if you are returning a country not found on the exempted list. This includes not going to work. It is a criminal offence to breach these regulations and you may face a fine if you fail to comply.

Self-isolation may cause difficulties for employees who are threatened with pay deduction, disciplinary, or dismissal. You should seek advice on your employment law rights in this situation from ACAS, LawWorks or a trade union.

What is the situation if I've been told to self-isolate by NHS Test and Trace?

If you are contacted by NHS Test and Trace, you will likely be told to self-isolate for 14 days. The government has produced guidance for employers and employees here which says that your employer should support you during self-isolation, you may be eligible for Statutory Sick Pay (SSP), and you can agree to work from home.

Self-isolation may cause difficulties for employees who are threatened with pay deduction, disciplinary, or dismissal. You should seek advice on your employment law rights in this situation from ACASLawWorks or a trade union.

What if I am under a local lockdown?

The Government have (re)imposed restrictions on movement and gatherings, and required some businesses to close in some areas with local outbursts of Covid-19. If you live or work in one of the affected areas you should read the government guidance for your area and seek advice on the laws giving legal effect to the lockdown.

The guidance including information on local restrictions in Leicester, the North of England and Luton here.

What if I live in Wales, Scotland or Northern Ireland?

The law and guidance in WalesScotland and Northern Ireland is different. You should check the guidance for these countries by clicking on the country you need.

Contacting Protect

Please contact our free confidential Advice Line on 020 3117 2520 or send us an email through our contact form if you have any questions or doubts about any of the above.