Return to work: commuting and attendance at the workplace
Employers are negotiating a whole raft of new problems with the re-opening of premises following the shutdown. We have given advice on the many steps that employers need to take to make sure their environment is safe and ready for employees and customers. However, the difficulties don’t end there.
One issue many employers are facing is that their employees are struggling to actually get into work. The way we travel and move around the country is very different now to before the lockdown.
What should an employer do where their employees tell them they are unable or afraid to travel to work?
All employers must remember that the government’s clear emphasis when advising employers that they can reopen is that those employees who can work from home should continue to do so. Where employees have been successfully working from home, there is no reason to change this. Employers may ask that there is occasional face to face time where this is needed or felt beneficial, but overall, an employee who has worked from home should be continuing to do just this.
When employees cannot work from home they are advised to walk, cycle and drive to work (rather than use public transport) and employers are asked to support them to do so by providing cycle racks and parking places where possible. It may be a good idea to look at various cycle to work schemes and to consider organising cheaper bike hire facilities for employees or funding loans for bicycle purchase or hire much as employers have long given loans for season tickets. With the government keen to encourage this way of commuting, it’s worth keeping an eye out for any incentives offered in this regard for employers to use to encourage this.
Not all employees will be able to walk or cycle or even drive, and may need to use public transport. Where this is the case, the employers should consider staggering start and finish times to avoid large numbers using public transport at peak travel times. Perhaps consider providing employees with suitable masks for travelling, and providing a place to change their clothes on arrival at work/before leaving.
Issues about Returning to work
Despite the best preparation by employers, employees may still have valid concerns about returning to work. We have found that the following areas are likely to be issues:
Frightened employees
For the clinically extremely vulnerable (shielded), clinically vulnerable or those who live with someone who falls into either of those groups, returning to work is a frightening idea.
On 22 June 2020, the government announced plans for the clinically extremely vulnerable in England to ease shielding as follows:
This means that, from 1 August 2020, those employees who cannot work from home will be able to return to their workplaces. The government called on employers to ease the transition for their clinically extremely vulnerable employees, and it would be incumbent on them to ensure particularly robust health and safety measures for them. In our experience, the best way to ensure that an employee feels safe to return in these circumstances is to take a bespoke approach and speak directly to them. Where the employee has valid safety concerns which cannot be met, then they should be allowed to stay at home on leave as a safe system of work is essential to all employees.
Employees feeling unsafe
Secondly, employees may have concerns relating to health and safety and what they perceive to be the employer’s failure to follow government guidance. Employees in these circumstances may be able claim automatically unfair dismissal (which has no qualifying service requirement) and they may be able to bring a claim under the whistleblowing legislation. It is, therefore, essential to take their concerns seriously, and to undertake further risk assessments where required. If the employer feels their risk precautions are robust and the employee is acting unreasonably, then they can insist on the return. This is a very delicate situation and should not be navigated without professional advice. It may be wise to consider outside HR support to both assess the risk assessments and to act as a mediator with the employee. Whilst employee’s can be dismissed in these circumstances it would be very much a last resort.
Anxiety generally
Finally, the employee may simply be extremely anxious about the risk posed by COVID-19 and frightened of a return to the office. This kind of anxiety could be sufficient to result in the employee being signed off sick.
Employers must be sympathetic and look at alternatives if possible, such as offering flexible working, or allow the employee to take holiday or unpaid leave.
Where anxiety is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19, an employer must try to help the employee. ACAS suggests an employer could offer extra car parking where possible so that the employee can avoid using public transport, keep the employee on furlough if they are temporarily unable to work, or arrange for them to temporarily work different hours to avoid peak time travel.
If the employee’s anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.
Severe anxiety can amount to a disability and where this is possible medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.