Lockdown v Returning to Work: What Should Employers do in England and Wales?

May 18, 2020

With different adjustments being made to the lockdown by the Welsh and UK Governments, there has been confusion about what employers across England and Wales can – and should – do to start bringing their staff back into the workplace. We address some of the key questions for employers below.

How do the new rules differ for English and Welsh employers?

In Wales: The rules on going to work remain the same: employees can only go out to work if it is necessary to do so, either because they are key workers or their workplace is still open but they can’t work from home. This guidance is made compulsory by regulations in Wales. The decision about bringing back non-essential workers is still therefore out of employers’ hands.

In England: Workers who cannot work from home are now being actively encouraged to return to work. This doesn’t apply to those whose workplaces are still ordered to remain closed, such as retail and leisure businesses – but for other sectors, the “stay at home” message has been lifted even if staff are not deemed key workers. This isn’t a change in the law though, because the guidance isn’t backed up by legally binding regulations in England.

Do employers have to start summoning staff back to work?

In Wales: No – the rules haven’t changed, so businesses are not required to start bringing staff back to work. However, the guidance is still that employees who are not able to work from home can still go out to work (provided their workplace is open) – meaning that businesses which have been allowed to remain open during the lockdown can still ask staff who are not able to work from home to go to work, provided they have proper protection measures in place.

In England: Employers don’t have to start bringing staff back to work, because the guidance isn’t compulsory – but they are being encouraged to do so (apart from in those sectors which have been told to remain shut) in the case of staff who cannot work from home. Before summoning staff back to work, employers should however ensure that they have the requisite safety measures in place.

Businesses which have sites across both England and Wales may find themselves in a tricky situation with the different rules and guidelines. However, the fact is that if the business is in a sector which has not been ordered to close down (these sectors are still largely the same for the UK and Welsh governments) and has staff who cannot work from home, those employees are allowed to attend work. The difference between England and Wales is that in Wales workers are still being asked to stay at home unless absolutely necessary, whereas in England they are now being encouraged to go to work.

What duties do employers have in terms of social distancing?

In Wales: Employers have legal duties to maintain physical distancing measures in the workplace under the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020.

In England: Employers are not yet legally required to bring in social distancing measures, but only subject to UK Government guidance which asks them to meet a new standard called “COVID-secure” (see https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19). Although the guidance is not yet legally enforceable, employers would still be at a high risk of legal claims from staff if they ask them to work in unsafe conditions.

In both cases, businesses are being told to ensure that homeworking continues for all workers who are able to work from home – the recent changes only apply to those who cannot do so.

Can employers dismiss staff who refuse to come back when asked?

For both England and Wales, the same employment law principles apply. Employers cannot subject staff to a detriment for raising concerns about a legitimate and pressing health and safety risk, or refusing to return to work while such a risk exists. Dismissing in these circumstances could lead to a claim for “automatically unfair dismissal”, even for staff with less than 2 years’ service.

However, once an employer has done everything it can to keep staff safe at work by putting physical distancing and other safety measures in place, it would be more reasonable to require staff to return to work and claims would therefore be less likely to succeed. In each case, a risk-based approach should be taken and a dialogue held with staff over their concerns.  It is strongly recommended that employers keep a written record of the safety measures they have put in place and the discussions they have had with their employees prior to their return to work.

In the case of staff who are shielding due to a long-term illness, are over 70 or have unavoidable childcare commitments that stop them from going to work, employers should show more flexibility where possible in order to avoid claims for disability, age or sex discrimination. If their roles can be covered, it would be advisable to allow those staff to remain on furlough leave while the Coronavirus Job Retention Scheme remains available to them – which is currently due to be until the end of July and then partially in place until the end of October.