Key considerations for the return to work - comment
While current advice from the Scottish Government is that staff should still work from home if they can, many businesses are considering how they can bring employees back into the workplace.
As they do, employers must ensure they’re taking the right steps to support their employees’ physical and mental wellbeing, as well as meeting their statutory obligations.
One key area will be how to deliver a safe working environment. Employees will probablyhave legitimate concerns about things that used to feel normal – such as sitting near colleagues or using communal facilities – and employers must remember their legal duty to ensure they do all that is reasonably practicable to minimise health and safety risks.
Employers will need to carry out a Covid-19 risk assessment and ensure appropriate protective measures are in place. The type and degree required will vary but reasonable steps could include physical distancing, using barriers such as protective screens between workstations and having staggered start and finish times and break periods.
Employers will also need to prepare for potentially tricky conversations with staff about their return. All concerns raised by staff should be taken seriously and managed sensitively on a case-by-case basis. No employee should be forced to return to work – they should be asked to do so only when necessary, no other option exists and it is safe and mutually agreed.
If employers consider they have no choice but to dismiss staff who refuse to re-enter the workplace, or send them home without pay, for example, they should first seek legal advice. Unfair dismissal or detriment claims can be brought by employees with fewer than two years’ service and any award in compensation is unlimited.
If an employee can establish that they reasonably believed they were in serious and imminent danger when refusing to return to work (or carry out a particular duty), they will most likely succeed in their claims. This is a complex area, likely to involve a number of factors including health and safety, childcare obligations and whistleblowing, so employers must tread carefully.
The return to the workplace will not be “business as usual” and employers will need to adapt how they engage with their team – at all times being considerate and empathetic. This might include encouraging staff to share their own ideas about what a return looks like – helping to foster positive engagement and better inform a firm’s return-to-work plans.
The return to work period will need to be carefully navigated but encouraging and maintaining a positive culture and values while ensuring a safe workplace can ultimately help ensure the health of a business – and that of its people.
Carolyn Bowie is a solicitor with Weightmans LLP
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