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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 Vaccination – OSHA Suggests Employers Consider Requiring Vaccination

August 16, 2021

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In the strongest language issued on the subject to date, on August 13, 2021, OSHA revised its COVID guidance for employers (“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”) and “suggest[ed] that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Since COVID vaccines became widely available, employers have been weighing whether to implement a COVID vaccination requirement for employees (whether to enter the workplace or to remain employed).  While not having the same force and effect as a regulation, published OSHA guidance is a meaningful and important indicator of what the federal safety watchdog considers to be appropriate employer action.  For those employers who were looking for that nudge to convince them to implement a policy requiring vaccination, this revised guidance may just be that nudge.

As we discussed in previous blog posts (Coronavirus (US): Key vaccination issues for employers – Part 1, Part 2, and Part 3) on the subject, when implementing a mandatory vaccination policy, employers must, among other legal

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 HR Two Minute Monthly: COVID-19 automatically unfair dismissal; objective justification to discrimination arising from disability; constructive dismissal as discriminatory act of harassment

COVID-19- automatic unfair dismissal for employee who remained in Italy during outbreak

A Tribunal has found, in the case of Montanaro v Lansafe Limited, that an employee who had travelled from the UK to Italy for the purposes of holiday and stayed in Italy during the Italian national lockdown in March 2020, was automatically unfairly dismissed.

Under section 100(e) of the Employment Rights Act 1996, an employee will be automatically unfairly dismissed if the principal reason for the dismissal is that the employee, in circumstances of danger which the employee reasonably believed to be serious and imminent, took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The claimant travelled to Italy for the purpose of his sister’s wedding, but found himself subject to the Italian national lockdown and a requirement to self-isolate for 14 days if he should return to the UK. Upon notifying the respondent of the circumstances, the respondent told the claimant to wait for instructions but subsequently sent a letter to the claimant in London purporting to terminate his employment for failing to follow company instructions and taking leave without permission. This was followed by his final payslip and P45

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

Coronavirus (UK): the next stage of the furlough scheme – key points for employers

In our recent blog, we highlighted the UK government’s announcement on 14 June 2021 in relation to the likely four week delay in triggering stage 4 of the lockdown roadmap.  This announcement was not, however, accompanied by a further extension of the Coronavirus Job Retention Scheme (“CJRS”).  On the assumption that there will not be an extension, the CJRS will cease on 30 September 2021.

Until 30 June 2021, the government furlough grant will continue to pay 80% of wages for hours not worked, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only.  However, things are about to change.

What do employers need to consider?

With effect from 1 July 2021 until the cessation of the CJRS on 30 September 2021, the following changes will be made:

  • From 1 July 2021: employers must contribute 10% towards the pay of furloughed employees, with the government grant reduced to 70%. The 80% furlough pay will continue to be capped at £2,500 per month.
  • From 1 August 2021: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to

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

UK HR Two Minute Monthly: COVID-19 automatic unfair dismissal, re-engagement orders, direct sex discrimination and hybrid working

Our May 2021 update considers key employment law developments from April. It includes recent cases on automatic unfair dismissal in the context of serious and imminent danger arising out of COVID-19; when it is appropriate for a Tribunal to order re-engagement of dismissed employees; the correct comparator of a male employee on shared parental leave and hybrid working. We also outline other points of note, including the extension of the furlough scheme and the Employment Tribunal road map.

Employees can claim automatic unfair dismissal where refuse to return to work in belief that workplace puts them or others in danger due to COVID-19

Mr Rodgers was employed by Leeds Laser Cutting Limited and was dismissed with less than two years’ continuous service.  Prior to his dismissal, Mr Rodgers had worked with a colleague who had been sent home because he was displaying COVID-19 symptoms.  Mr Rodgers then developed a cough and shortly thereafter texted his employer to confirm he had no alternative but to stay off work until the lockdown had eased to avoid infecting his children.  Mr Rodgers lived with his two young children, one of whom had sickle-cell anaemia.  Mr Rodgers did not mention that he was staying

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
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