In getting furloughed workers back to work employers are going to face some ongoing workplace challenges
With other COVID-19 European countries commencing an easing of lockdown restrictions, attention is now focused on the UK’s roadmap out of the pandemic.

No doubt more detail will emerge following the Prime Minister’s speech on Sunday night, however the fact remains that employees can only return to the workplace if they are sufficiently safe, they can get there safely and, importantly, there is actually a job to return to.

For a lot of furloughed employees spending time at home on 80% of pay may have been superficially attractive. However, after 6 weeks of lockdown most are climbing the walls and longing to return to work.

Employers in some sectors have continued to operate normally with a full workforce, while others will have furloughed some employees.

Potential Challenges

In getting furloughed employees back to work employers are going to face challenges. For example, there is likely to be:
  • a minority of employees whom, perhaps, rather enjoyed being furloughed and will be reluctant to return to work, especially while the furlough scheme continues;
  • mischievous employees returning to work and causing difficulties by repeatedly complaining that practical steps to maintain safe distancing and/or the provision of PPE are insufficient;
  • employees who whilst wanting to return to work have genuine concerns about returning through fear of contracting the coronavirus;
  • employees who are clinically vulnerable (i.e. pregnant women, individuals aged over 70 and individuals aged under 70 who have an underlying health condition), or fall into the category of being clinically extremely vulnerable;
  • employees who want to return to work (including homework) but either still have children who can’t go back to school, or have other childcare issues.
Legal Obligations

Employers will be familiar with s2 & 3 Health & Safety at Work Act 1974 and their duty to ensure the health, safety and welfare of their employees. There is the potential for claims where employers have not sufficiently adjusted workplace practices whilst COVID-19 remains a serious threat and an employee falls seriously ill.

Less known, perhaps, is the Personal Protective Equipment at Work Regulations 1992. In short, employers have a legal duty to provide PPE to their employees which, considering COVID-19 might include providing face masks depending on the working environment. If it wasn’t for COVID-19 a lot of employers might never have had to consider extensive PPE before.  Breach of these regulations is a criminal offence.

If an employee is pregnant (they are clinically vulnerable) then there is a legal duty to fully risk assess what adjustments need to be made to provide a safe working environment. If this can’t be achieved then the employer should try to offer suitable alternative work or, if all else fails, suspend the employee on full pay.

Employees who are “clinically extremely vulnerable” should be supported to stay at home. Government guidance makes clear that “clinically extremely vulnerable” employees should not return to work. As such, unless the guidance changes, employers are taking a huge risk by allowing this category of employee to return to the workplace. In a similar vein, employees who are “clinically vulnerable” should also be encouraged to stay at home, albeit they may return to work provided adequate risk assessments are made.

It’s going to be immensely challenging for employers to unpick the way their businesses currently operate, and then recalibrate having thoroughly risk assessed in order to make workplaces safe. 

Even those businesses which have been operating normally during lockdown should think about re-risk assessing – standards of health & safety will now need to be more exacting that workplaces are becoming the focus of attention.

Employers will understandably be tempted to give employees who continually complain about a safe working environment short shrift, especially if they believe such complaints are mischievous. Employers need to be careful, however. 

Under s100 Employment Rights Act 1996 (“ERA”) employees are afforded a lot of protection from dismissal, or detriment under s44(1)(d) ERA when health & and safety concerns are raised. The legislation protects employees with any length of service. Compensation is also uncapped.

Under s100 ERA an employee will be unfairly dismissed if the principle reason for the dismissal is that in circumstances of danger which an employee reasonably believes to be serious and imminent, and which he could not reasonably be expected to avert, he leaves work, or refuses to return to work if the danger persists and/or he takes steps to protect himself. Most lawyers acknowledge that for the time being COVID-19 potentially presents a “dangerous circumstance” in the workplace.

Employees only need to have a reasonable belief – a concept which is notoriously difficult for employers to challenge. Perhaps one of the best ways to challenge a reasonable belief is to disclose to the employee any COVID-19 specific health & safety assessments (ideally prepared by external qualified health & safety advisors). 

In the same vein, employers need to be careful how they deal with employees refusing to commute on tubes, buses, or trains meaning that they cannot get to work. Arguably, commuting still presents a risk to employees but one which is frustratingly outside the control of the employer. The law is unclear as to whether the protection under s100 ERA applies to an employee refusing to commute due to health & safety concerns.  It’s arguable that such protection does apply. Accordingly, employers should be wary of dismissing employees who complain. Clearly, this is an area potentially ripe for abuse.


As a result of COVID-19 even the most hardened and previously inflexible employers are starting to warm to the idea that their businesses can still operate effectively but more flexibly. As the lockdown rules are relaxed there will be some unique legal challenges, however they should be fairly short-term as businesses slowly return to the new normal
CONTACT: Christopher Filor
EMAIL:   TELEPHONE: 01647 231475
MOBILE: 07891 055856
This publication is not intended to provide legal or other professional advice and should not be relied upon as such. Readers should take legal advice before applying the information contained in this briefing.
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