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Wed June 03 2020

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Back to work order presents headaches for managers… and worse for workers

12 May Confusion surrounds the latest government edict that any worker in England unable to work from home should get back out to work.

Social distancing and meetings outside are now familiar on construction sites
Social distancing and meetings outside are now familiar on construction sites

Addressing the people of England only, the prime minister said on Sunday evening: "We now need to stress that anyone who can’t work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work.”

On Monday (11th May) the government published guidance for employers on how to enable staff to continue and return to work. There are eight workplace guidance documents now available under Working safely during coronavirus (Covid-19) guidance.

One of them is specifically for ‘Construction and other outdoor work’. But for those familiar with the construction industry coronavirus Site Operating Procedures first produced in March, there is little new in this (assess risks, two metres where possible, washing & cleaning, try and avoid public transport, etc).

The Construction Leadership Council (CLC) is reviewing the Site Operating Procedures to ensure they are 'fully consistent' with the new guidance but any revisions are likely to be minor, with perhaps the addition of advice to wear a face mask for those forced to travel on buses and trains.

But while the government's new advice document is subtitled “Guidance for employers, employees and the self-employed”, the information likely to be the most valuable to employees is nowhere to be seen. It omits to tell employees that they have a legal right to refuse to work if they believe their health & safety is at risk. This includes during their journey to and from work, which for many can still only mean public transport.

Dan Hobbs, employment barrister at 5 Essex Court, says: “The new message (‘return to work if you cannot work from home’) is likely to bring employers and employees into conflict. Social distancing in the workplace (particularly on construction sites) may be difficult to achieve and other protective measures, such as the provision of PPE, 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. “

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He says: “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).

“Accordingly, if an employee walks out of the workplace or refuses to return to the workplace in circumstances of danger which the employee reasonably believes to be serious and imminent, the employee cannot be subjected to a detriment by his employer as a result.

“If an employer were to take disciplinary action or withhold pay (or impose any other detriment) in such circumstances because the employee has raised a relevant health and safety concern, they will be in breach of s.44 and could face proceedings in the Employment Tribunal.

“Likewise, 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.”

Clearly this presents a challenge for managers. For site workers who are being told to get back to work, however, the stakes may be rather higher.

The Trades Union Congress says: “If you’ve been told to go into work tomorrow, know this: everyone has the right to work in safety. And you have a legal right to refuse to work if risks are serious and imminent. If you’re worried, talk to your union, ask your employer make it safe, or contact the HSE for help.”

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