PM's announcement causes confusion for businesses

Last night’s pronouncement from Prime Minister Boris Johnson that anyone who cannot work from home was actively encouraged to go back to work, has caused confusion.

Workers were also urged to avoid using public transport if possible; and guidance for employers to make the workplace covid-secure is being prepared.

The Coronavirus Act and accompanying regulations remain unchanged, however, the government’s emphasis appears now to have shifted from ‘work from home if you can’ to ‘get back to work if you can’.

The resulting lack of clarity presents a problem for the UK’s workforce, though further information and clarification is expected later today.

Dan Hobbs, an employment barrister at 5 Essex Court, said the new message – ‘return to work if you cannot work from home’ – is likely to bring employers and employees into conflict.

He commented: “Social distancing in the workplace (particularly on construction sites) may be difficult to achieve and other protective measures, such as the provision of PPE, has been a point of much contention throughout the crisis to date.

“Employees may be rightly concerned for their own health and safety as well as that of their co-workers and others in their household.”

Under section 44 of the Employment Rights Act 1996 (ERA), employees may not be subjected to a detriment because they have raised a relevant health and safety concern with their employer, such as the failure to provide effective social distancing measures in the workplace or the unavailability of PPE, said Hobbs.

He warned that if an employee walks out of the workplace or refuses to return to the workplace in circumstances of danger which the employee reasonably believes to be serious and imminent, the employee cannot be subjected to a detriment by his employer as a result.

“If an employer were to take disciplinary action or withhold pay (or impose any other detriment) in such circumstances”, said Hobbs, “because the employee has raised a relevant health and safety concern, they will be in breach of section 44 and could face proceedings in the employment tribunal.”

If the employee is dismissed for that reason, he added, they will have a claim under section 100 ERA for automatic unfair dismissal – for which there is no qualifying period of employment to bring such a claim; and interim relief is available.

As one employment specialist commented on Twitter this morning: “I suspect UK employment lawyers are brushing up on their interim relief knowledge this morning in readiness for the wake of whistleblowing dismissals of those raising breaches of health and safety legal obligations.”