The Prime Minister announced on Sunday that employees can return to work if they cannot work from home.
However, Dan Hobbs, employment
barrister at 5 Essex Court, said: ‘Social distancing in the workplace
(particularly on construction sites) may be difficult to achieve and other
protective measures, such as the provision of PPE (personal protective
equipment), 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. Section 44 of the Employment Rights Act 1996 provides that
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).’
Consequently, any employer who took
disciplinary action or withheld pay because the employee refused to return,
walked out or raised a relevant concern where they reasonably believed the
danger to be serious and imminent would be in breach and could face proceedings
in the employment tribunal, he said. Similarly, ‘if the employee is dismissed
for that reason, they will have a claim under s 100 ERA for automatic unfair
dismissal. There is no qualifying period of employment to bring such a claim
and interim relief is available’.
Meanwhile, lawyers broadly welcomed
Chancellor Rishi Sunak’s four-month extension of the furlough scheme to the end
of October, with a part-time flexible option available from August.
Jo Keddie, partner at Winckworth
Sherwood, said: ‘Employers may still face some difficult practical choices as
to how to put that into practice and how best to balance furlough arrangements
with part-time working for employees where possible.
‘The wider guidance issued this
month surrounding health and safety requirements for businesses in different
sectors will still be of crucial importance.’
Simon Davis, president of the Law
Society, said the extension would be ‘a big help for firms, particularly small
ones’.
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