It may not have been easy, it may not have been transparently clear but whatever else it was, it was mandatory so there was little room for debate in the workplace when it came to Covid 19.  But now the restrictions have been lifted, where does that leave an employer insofar as Covid is concerned?

Whilst restrictions have now been lifted, employers STILL have a responsibility to ensure their workplace is Covid safe; so ventilation (or air conditioning) and social distancing remain important.  There has never been such an important time to have a written Covid risk assessment which is comprehensive and published to all employees.  Risk assessments are useless if they are tucked away in a drawer!

Can you insist your employees wear a mask?  It is always best not to be authoritarian about these things; talk to your staff and get a consensus.  If the experience of visiting supermarkets is anything to go by, you may find that your employees are quite willing to wear masks whilst in a confined space, unless they have a disability that precludes them from doing so.  Unless you are operating in the care sector, mandating mask wearing may expose you to complaints and grievances.

Can an employee refuse to go to work?  The Employment Rights Act 1996 s44 provides statutory protection for an employee who refuses to go to work because s/he believes there is a “serious and imminent danger” to them in the workplace and the Employment Rights Act 1996 s100 makes it an automatic unfair dismissal if you sack someone who refuses to come to work because they genuinely believe that there is a “serious and imminent” danger to them if they do so.  It doesn’t matter if that belief is misplaced provided they can show that their belief was reasonable and genuine in the circumstances at the time.

Of course, it may not be your workplace that they believe to be a Covid danger to them, it might be their work colleagues.  A failure to socially distance for example.  Or perhaps a colleagues engages in what the employee believes to be risky behaviour, such as going to night clubs.  An employer cannot tell his/her staff not to do something that is perfectly legal – such as going to night clubs.

So what is an employer to do in these circumstances?  As far as possible, maintain Covid-secure measures in your workplace.  Provide hand hygiene, apply social distancing, implement working from home or a hybrid of workplace/working from home if it is possible to do so.  Keep your risk assessment updated and published to your employees and engage with them when drawing up your risk assessment – employers do not have a monopoly on good ideas!  Staff are much more likely to comply with something they have had a hand in drawing up.  Provide lateral flow tests and encourage your staff to use them.

If you have an employee who is still too nervous to come to work, communicate, communicate and then communicate again.  Make sure you understand the basis of their anxieties and keep a clear audit trail of everything you have said and done to alleviate their anxieties.  Emails make an excellent audit trail as they have dates and times on them.  If all else fails get good HR/Employment law advice before dismissing or threatening to dismiss.

Need help?  Contact me on 07766 167160

 

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