We understand that we are in unprecedented times. Everyone is looking for guidance, and it’s not always clear where to look for answers.
If you have been furloughed and are concerned about returning to work, you are not alone. We have received many messages with questions about returning to work after lockdown. So much so, that we have decided to compile the FAQs.
Here’s a guide to your rights in Wales if your employer wants you back in the workplace.
How Should Employers Prepare Before Staff Return?
The Welsh Government has created a list of businesses which must remain closed. If your organisation is on here your employer should not require you to attend work.
For those not on the list, employers are required to conduct a risk assessment as to whether it is or may be made ‘COVID secure’ for staff to return to their duties on site. Employers are expected to consult with staff or their trade unions before re-opening.
There are new legal requirements to take all reasonable measures to ensure a 2m distance is maintained in the workplace.
The Welsh Government has advised that employers need not encourage the unnecessary use of higher specification PPE. Employers, however, should nevertheless carefully risk assess the appropriate level of PPE required, which will depend on the industry and level of exposure to the virus in the course of their duties.
What If I’m Worried About Getting to Work Safely?
While walking, cycling, or driving yourself to work may present little in the way of risk of exposure to the virus (the Welsh Government is discouraging car sharing, if passengers are from different households), reliance on public transport might well be a source of anxiety and possibly a barrier to returning to work safely.
To address the risk, typical suggested measures to discuss with your employer are changes to start and finish times so that you can travel at off-peak times, providing car parking spaces in order to avoid public transport, or continuation of arrangements to work from home.
What Happens If I’m Back at Work, But Develop COVID Symptoms?
You have a duty of care in the workplace for your own safety and those of others, including colleagues and the wider public. An employer will therefore have to rely on their employees to some extent in order to effectively implement the measures and report any risks to other colleagues and the public.
If you become unwell with COVID19 symptoms, you should follow the latest government guidelines to self-isolate and obtain a test. You should comply with any company rules regarding reporting requirements and your employer may send you home if you are displaying such symptoms.
The Welsh Government has introduced the ‘Test, Trace, Protect Strategy’ to enable us to work alongside the virus whilst research is still underway to find a vaccine. Therefore, you may be asked to share details of those you have been in contact with, which is likely to mean sharing your employer’s, and potentially your colleagues’, contact details as part of this exercise.
You should be eligible for Statutory Sick Pay from the first day of your absence. If your contract of employment provides, you might also be entitled to Company Sick Pay at a higher rate.
You could be asked to provide a medical certificate regarding your absence, in which case you can obtain an isolation note by using the COVID19 symptom checker on NHS 111 Wales.
What If A Colleague Has COVID Symptoms?
If a colleague is displaying symptoms, they have a duty to follow the government guidelines to self-isolate and test. If the test is positive, they will be asked to share details of people with whom they have been in contact. This could mean that your employer is contacted, who in turn, might need to contact you, or that you could be contacted directly by the contact tracer.
You might then also be required to self-isolate in line with government guidelines, in which case you would need to notify your employer and follow any company notification procedures.
Even though you might not be ‘sick’, because you are following government instructions, you should be entitled to Statutory Sick Pay and the government guidance states that your employer should give you the opportunity to use holiday, if you’d prefer.
Notification from the contact tracer should for sufficient evidence for SSP purposes and you are likely to provide this as confirmation to your employer. You should check your contract of employment to find out whether you might also be eligible for Company Sick Pay at a higher rate.
What If I Can’t Find Childcare or Domiciliary Care Before I Have to Return to Work?
If you are struggling to deal with your caring responsibilities, such as caring for a minor or perhaps someone who has been advised to shield, whilst facilitating a return to work, the Welsh Government guidance encourages you to discuss your concerns with your employer.
Employers are already under a legal duty to make sure that their practices do not indirectly discriminate those with certain protected characteristics, for example women are also statistically more likely to be the primary carer for children.
If you have been furloughed on or before 10th June 2020, then you could also discuss using the furlough scheme as a potential temporary solution.
What If I’m Shielding, Living With Someone Who Is Shielding, Or In An “At Risk” Group?
If you are shielding or at risk, you might need to remain away from the workplace in compliance with government advice, or extra care may need to be taken to make your workplace COVID secure for you.
The Welsh Government advice currently for those who are defined on medical grounds as extremely vulnerable, is to shield.
Extremely vulnerable is a classification referring to people in Wales who have one of a very specific list of pre-existing and long-term serious health conditions. It is likely that those falling within this classification, also satisfy the Equality Act 2010 definition of a disabled person. Employers must therefore be mindful of their obligations under the Equality Act 2010 and their duty to make reasonable adjustments.
The Welsh Government stated that if people in this classification can work from home (if their job allows it) they can, and they will not need a medical certificate.
If you live with someone who is extremely vulnerable, then your return to the workplace might expose them to a higher risk of transmission of the virus. The Welsh Government states that household members do not need to shield, but they must follow social distancing guidance. Therefore, if you reasonably believe that you aren’t able to social distance if you return to work, you must disclose your concerns to your employer and seek to agree appropriate measures which protect the extremely vulnerable person you live with.
What Can I Do If I Can’t Agree Arrangements With My Employer?
This will depend on why an agreement cannot be reached. Generally speaking, the first resort should be to discuss your concerns with your employer. It would be rare for one policy to fit all employees perfectly, and so individual discussion will help identify which of the rules and measures need to be more flexible than others to achieve their aim. Both you and your employer are required to behave reasonably.
If you believe that you have been discriminated against due to a protected characteristic under the Equality Act 2010 (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation), you should obtain a copy of your employer’s grievance procedure for guidance as to how to pursue an internal complaint.
You should also take legal advice on whether you have grounds to make a discrimination claim to the employment tribunal and your time limits for doing so.
Read more: Howells Solicitors’ Guide to Discrimination in the Workplace: Know Your Rights
If you are concerned about the safety of your workplace, you can report this to your employer, or potentially, the Public Protection services of your local authority, who are responsible for health and safety advice and enforcement.
You can take such appropriate measures to protect yourself or others from harm, which might include refusing to return to the workplace or the dangerous part of it.
You should take legal advice as to whether your actions qualify for legal protection against detriment or dismissal.
Read more: What is a ‘Protected Disclosure’ and How Do You Define ‘Relevant Failure’?
Finally, if you think your employer is acting so unreasonably that you are considering resigning, then you could have grounds for a constructive unfair dismissal claim. Some employment protections are in place from day one of your employment, others, such as constructive dismissal, have a qualifying period of service before it is engaged. For example, you would need two complete years’ service in order to make a claim for constructive unfair dismissal.
Read more: How to Protect Your Legal Position at Work
Have More Questions?
If you have specific questions about your own situation at work, contact us today to speak to one of our employee law experts.
This information is intended for general information purposes only and should not be used as a substitute for professional advice. Howells Legal Limited accept no responsibility for any direct or indirect result arising from any reliance placed on it, including any loss.