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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