Can employees refuse to return to work if they feel unsafe?

Authored by DAS

Tens of thousands of employees across the country are being asked to return to work as lockdown measures ease and business look to re-open in whatever way they can.

It is expected that nearly two-thirds of Britons will return to work by the end of August with safety measures put in place to protect them.

Nevertheless, many employees may still feel uncomfortable about returning to their workplace. Can an employee refuse to return to work due to fears of contracting Covid-19 and where does the law stand if employees decide to ‘take a stand’?

Chloe Williams, Legal Adviser at DAS Law, looks at what you need to know…

With lockdown measures being eased, my employer has asked me to return to work but I don’t feel safe.  Can I refuse to come back to the workplace?

This depends upon the situation itself. Your employer owes you as an employee a duty of care. The law is very clear on the fact that if you feel that your place of work is unsafe, then you would be protected when taking certain measures, an example of this could be refusing to attend.

The law is there to protect you when it comes to your safety and you therefore should not be put at any detriment as a result of taking such steps. However, whilst your employer owes you a duty of care, if the employer has implemented all reasonable steps and is complying with all safety measures and risk assessments have been carried out, then unless there is a medical reason for your concerns about returning, the employer may consider you to be on unauthorised absence.

I have been asked to return to work but do not feel safe using public transport.  Can I refuse to return or insist my employer pays/organises safe transport to and from work?

Although your employer does owe a duty of care to you and other members of staff they do not have an obligation to arrange or pay for any safe transport to and from the work place (unless contractually obliged to) and this is generally not a reason to refuse to attend. However, as above, should you have any concerns around the safety of travelling back and forth to the work place, you could approach your employer and raise this with them.

I’ve been furloughed but I don’t feel safe to return to work, even with lockdown easing; can I refuse to return to the workplace and ask to remain on furlough?

As above this depends upon the situation itself. It would be best for you to firstly raise any concerns that you have with your employer to begin with.  Furlough was put in place by the government under the Coronavirus Job Retention Scheme and it is to be used by employers when they are unable to operate or have no work for you to do because of coronavirus.

If you have been asked to return to work, this suggests that Furlough no longer applies as work is available. Failure to return to work without good reason could be classed as unauthorised absence.

My medical history makes me more vulnerable to the virus.  Can I refuse to return to work until I feel comfortable and safe to do so?

As stated above, this would depend upon the situation itself. You could firstly raise this with your employer informally if you feel the work place is unsafe. Should you not get the answer you had hoped for then you could consider the more formal route of a grievance which could outline your concerns with regards to health and safety.

You could also consider speaking with your GP for some advice with regards to your medical history and whether they can give any recommendations or suggestions that you could put forward to your employer (if any). Should the risk be too high then a sick note may be an option. However, as stated above, failure to have good reason for not returning to work could be deemed as unauthorised absence.

If you do have a genuine reason and health concern that affects your ability to return to work, best practice would be to ensure you have a letter or fit note confirming the need to remain off work due to the risks.

I have recovered from Coronavirus - does this mean it is safe for me to return to work and interact with colleagues?

As long as you have followed current guidance from the NHS and have recovered then it should be fine for you to return to work. It is still however recommended to adhere to social distancing (and any other government guidance) at all times. Should you get symptoms again it would be recommended to follow NHS guidance and to isolate again for at least seven days from where the symptoms started.

Anyone within the same home who does not have symptoms must self-isolate for 14 days when the first person in your home started having symptoms, this is down to the belief that it can take up to 14 days for symptoms to appear.

I wish to return to work but I live with someone who is clinically vulnerable. Can I continue to work from home until the threat of infection has passed?

Members of the household who aren’t extremely vulnerable are not required to shield but have been recommended to limit their contact outside of the home. Generally there is no requirement for those who live with vulnerable individuals to stay at home. Should you have any concerns around this then it would be best to speak with your employer in first instance to see what their approach would be - they may continue to allow you to work from home (if possible).

Should their response not be what was hoped for, then you could raise it formally as a grievance, outlining your concerns around health and safety. However, without your employers consent should you refuse to return this could be deemed as unauthorised absence.

If I don’t want to return to work, can I negotiate with my employer to continue working from home? Can an employer refuse my request and is there a risk I might be dismissed?

Ultimately, this would come down to what the reasons are behind your request and whether it’s sustainable for you to be working from home. Should you have any concerns about returning to work then you could always run these past your employer to begin with and then escalate if required as above.

As previously explained the law is there to protect employees and regardless of length of service and should you be able to show that you have whistle blown you are protected by the law if you report any concerns over health and safety and you therefore should not be put at a detriment for doing so. Should you be dismissed you could potentially have a claim for an automatic unfair dismissal.

I believe I may be developing symptoms of coronavirus and have to self-isolate. Will I still get paid if I self isolate when my colleagues return to work?

You may be entitled to Statutory Sick Pay (SSP) as long as you are eligible. The government has brought in legislation which allows employers to pay employees who are off with symptoms and isolating from day one.

You may be eligible to claim SSP if:

You are self isolating because you or someone you live with has coronavirus symptoms;

You are self isolating because you have been notified by the NHS or public health authorities that you have come into contact with someone who has the virus;

You are self isolating at home because you’re at high risk of severe illness from the virus – also known as shielding.

However, it is still advised for you to follow any sickness policies that you have in the work place such as how you report in to avoid any disciplinary action being taken.