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UK-COVID-19: Back to the office and employees with health and safety concerns – can an employer dismiss an employee who refuses to return?

After 18 months of almost entirely remote working, we have seen much of the City now implementing ‘Back to the Office’ policies and on Monday 6 September central London saw its busiest day on public transport since the pandemic began.

Employers’ ‘Back to the Office’ policies vary. Many of these arrangements are now mandatory and staff are required to return to the office either on a full-time or part-time (“hybrid”) basis.

However, employers may find themselves in a situation where one or more employees refuse to come back to the office on a full or part-time basis on the grounds of health and safety concerns. In this article, we consider the legal merits of such a situation, as well as examining recent case law.

Can an employer dismiss an employee who refuses to come back to the office based on health and safety concerns?

Section 100(1)(e) Employment Rights Act 1996 (“ERA”) provides that an employee can be automatically unfairly dismissed if that employee takes “appropriate steps” to protect himself/herself in circumstances of danger which he/she reasonably believes to be “serious and imminent” and is dismissed as a result.

Pre-pandemic, claims under s100(1)(e) ERA were relatively rare but we anticipate an

COVID-19: self-isolation removed for double jabbed close contacts in England from 16 August – implications for employers

The UK government has confirmed that from Monday 16 August the rules on self-isolation for COVID close contacts will change for (a) the fully vaccinated (meaning all those who have had two vaccine doses, but only from 14 days after the second vaccine dose) and (b) under 18s in England. Instead of self-isolating, these individuals are advised (but not required) to get a PCR test as soon as possible.

Those who are not fully vaccinated will still need to isolate if they are COVID contacts, and everyone (including the fully vaccinated) will still have to isolate if, having taken a PCR test, they test positive. The need to isolate if suffering symptoms also remains.

As double jabbed individuals who are identified as close contacts by test and trace are still at risk of being infected and of transmitting COVID, people are advised to consider other precautions such as wearing a face covering in enclosed spaces, and limiting contact with other people, especially with anyone who is clinically extremely vulnerable. Double jabbed individuals will not be required to self-isolate while they take and wait for the results of the PCR test.

The changes may leave many employers uncertain about the measures

UK Covid-19: The importance of being adaptable when implementing hybrid or blended working policies

Now that the government is no longer instructing people to work from home if they can, many employers are pressing ahead with the implementation of hybrid or blended working arrangements. This article highlights the importance of being adaptable when implementing such arrangements, especially in respect of discrimination risks.

Many employers are now adopting policies which mandate that employees need to attend the office for a specific duration i.e. 3 days a week at home and 2 in the office. When implementing such policies, it may be tempting (and administratively easier) to apply them across the entire workforce without making exceptions based on individual circumstances. However, employers should be careful about adopting such an approach without considering the risk of discrimination claims. For example, employees with underlying health conditions may allege disability discrimination if they are subject to a detriment due to a failure to obey an instruction to return to the workplace. Employers should also be aware that the Employment Rights Act 1996 provides protection for employees who raise health and safety concerns or refuse to attend work where they have a reasonable belief that there is a serious and imminent danger to health.

Whilst not as common, some employers

UK Covid-19: Workplace testing: Is it good for employers’ health?

The government is encouraging employers to regularly test their employees for Covid-19. This article looks at some of the implications of introducing a workplace testing regime and suggests an alternative approach to carrying out such testing in the workplace.

New health secretary Sajid Javid has stated it is the government’s intention that step 4 of the lockdown roadmap will take place on Monday 19 July 2021, or “terminus day” as it has been called by the prime minister.

It has been speculated that the work from home guidance may remain in place beyond stage 4 of the roadmap, but the government’s intention at this stage appears to be for all restrictions to fall away on the 19 July. However, despite the easing of restrictions the government has confirmed that testing will remain central to controlling the spread of Covid-19, especially as we move into the winter months when cold/flu symptoms will become more prevalent. In view of this, the government have stated that they would like as many employers as possible to sign up to regularly test their employees for the virus.

Despite this encouragement, employers should be aware that the government’s working safely during coronavirus guidance makes it clear the

UK Covid 19: Government announces delay to final step on roadmap, emphasising the need for employers to be ready for change

The government has announced that stage 4 of the lockdown roadmap will be delayed. This article looks at how employers need to be able to anticipate future change in their return to work policies.

On Monday 14 June 2021, the government announced that stage 4 of the lockdown roadmap will be delayed for a period of up to 4 weeks. As part of this, the government guidance that workers should work from home if possible will continue beyond 21 June.

This comes at a time when employers, particularly those with an office-based workforce, have been considering the approach they will take in return to work policies. That will continue, but with the inevitable pushing back of implementation. Employers, quite understandably, want to be ready for an influx of people coming back to the office and, more often than not, have been steering towards a policy that allows the workforce to continue working from home to some degree.

Since the outbreak of the pandemic in the UK in March 2020, one thing we have known for certain is unpredictability. It was only in September last year that the government launched a short-lived advertising campaign to encourage workers to return to their

Returning to the office: Key questions and answers for UK employers

As 21 June 2021 gets nearer, how are you going to manage the return to the office? Adam Lambert, Mark Kaye and Lydia Moore answer the key questions being asked by office-based businesses in the first in a series of regular updates on the topic.

  1. Can an employer force its employees to return to the office? Despite the easing of the lockdown in the UK, the government guidance is to still work from home where possible. However, the potential further easing of restrictions on 21 June 2021 will mean that employers will have the option to consider whether it may be appropriate to ask their employees to come back to the office. Employers will need to act with caution and treat each employee on a case-by-case basis. Although the contract of employment will almost certainly require the employee to work at the company’s offices, the impact of COVID-19 should not be disregarded. If an employee is reluctant to return to the office, they should be consulted first so that steps can be taken to allay their fears and other options can be explored. If an employee has a disability, there will be an additional requirement for the employer to

UK Supreme Court delivers verdict in landmark Uber case


The Supreme Court has unanimously concluded that the Uber drivers who brought claims against Uber in 2015 are workers within employment legislation, giving them the range of rights attached to that status, such as the national minimum wage, the right to paid leave and whistleblowing protection.

Facts and Employment Tribunal decision in 2016

As many of you will be aware, Uber is a ride-hailing service which operates through an app downloaded to a user’s smartphone. The app enables a user to request a ride and be picked up from a pre-selected location. 25 Uber drivers brought a case against the company, which reached the Employment Tribunal (ET) in 2016. The drivers sought to be categorised as workers as opposed to self-employed contractors. Uber’s position was that it simply provided a technology platform which facilitated the provision of private hire vehicles to customers. Uber argued that it served as an agent, with the driver and passenger entering into a direct contract for each journey.

The ET concluded that the drivers were workers. In reaching this decision, the ET considered the following factors:

  • Uber mandated drivers to accept bookings and drivers who repeatedly cancelled would face sanctions
  • Uber imposed conditions

UK HR Solutions: How to deal with sickness absence

Welcome to the next post in our weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, disciplinaries, suspension, performance management and much more besides.

This week we look at how to deal with sickness absence.

Click here to read our sickness absence guidance note.

UK HR Solutions: Grievances and how to handle them

Welcome to the first in our new weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. In the forthcoming weeks we will cover a variety of topics, such as how to manage disciplinaries, suspensions, poor performance, sickness absence and much more besides.

In our first edition, we are looking at grievances. The way in which an employer handles a grievance has long term employee relations implications, in addition to potential legal liabilities.

Click here to read our step by step guide to grievances and how to handle them.

Coronavirus: HR impact of the economic statement by the UK Chancellor of the Exchequer

Following catastrophic falls in economic output during quarter 2, the UK Chancellor of the Exchequer has, today, made a ground-breaking economic statement setting out the UK government’s second phase of its economic response, which includes a significant effort to “protect, support and retain jobs”.Given that largescale unemployment would be a key factor in creating long term scarring for the economy, a key emphasis has been on reducing the number of unemployed as we emerge from the Coronavirus Job Retention Scheme (“CJRS”) at the end of October 2020.Set out below are the key points for employers:

  • Job Retention Bonus. To incentivise employers to bring furloughed employees back to work, the government will pay employers a bonus of £1,000 per employee on condition that following the end of the CJRS, they remain employed by their employer until at least January 2021, earning a minimum of £520 per month.
  • Kickstart Scheme. This scheme will provide new jobs to 16-24 year olds who are on Universal Credit.  The government will pay the national minimum wage of young people employed under this scheme for the first 6 months of their employment, subject to the job being a new one; salary being a national minimum wage
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