Coronavirus – What Are Your Rights As An Employee if You Can’t Work From Home?

Posted onMarch 18, 2020

As London employment law solicitors we are in the fortunate position of being able to switch to remote working and client consultations, almost at the press of a button because we already had the infrastructure, processes and safeguards in place to enable our solicitors to work remotely. We’ve also offered a digital consultation option for several years via our online platform, skype or telephone conferencing. We are however acutely conscious that not all of us can work remotely and that not all employers are addressing their employee’s safety needs and rights as quickly as their employees would like. In this blog we look at your rights as an employee and your health and safety.

COVID-19 update:

A message from OTS Solicitors - We have already brought online, and deployed the advanced infrastructure, processes and safeguards to allow our professionals and support teams to function fully remotely. Within our client service areas, our teams have implemented plans to ensure that our clients continue to be served without disruption. We would also like to remind our existing and new clients that we have offered a digital consultation option for several years and now in light of the Corona Virus developments we would encourage any clients seeking on-going consultations or new clients to contact our switchboard who will arrange an appointment via our online platform, skype or telephone conferencing

Online employment law solicitors

For advice about any aspect of employment law our dedicated team of employment law solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to arrange a video conference, Skype or telephone appointment.

Covid 19 and employment law rights

We all feel tremendous pride in the frontline medical staff who don’t have the option of working remotely during the coronavirus pandemic.However, it isn’t just doctors and nurses who are having to confront Covid 19. All of our pharmacists and food retailers don’t want to close up but how should an employer protect their employees during a public health emergency; whether they are a doctor or nurse in frontline emergency care or a supermarket manager, shelf stacker or delivery driver working tirelessly to fill our supermarket shelves or fill our online delivery orders?

Health and safety law and Covid 19

For many years health and safety officials and legislation has been the butt of many jokes but now many employment law solicitors are advising on health and safety at work for those employees who can't work remotely from home given the constraints of their job.

Section 44 of the Employment Rights Act 1996 is the Act that employment law solicitors look to when asked to give advice on health and safety at work.

Section 44 of the 1996 Act enables employees to challenge the adequacy and the suitability of any safety arrangements at work without worry about:

Losing your job
Getting your salary cut
Receiving a demotion, transfer or poor appraisal.

You may think that it is very well that your employer can't sack you or demote you but many employees are asking employment law solicitors whether they have to go into work if they don’t think health and safety is properly being assessed.

Other employees are contacting OTS Solicitors because, like with Amazon warehouse workers and delivery drivers, they are being asked to work longer shifts and to do overtime. For some the extra hours and work will be welcome but for those with care commitments they might not be. What is more, if you are being asked to work longer hours, you or your colleagues, may not be as safety or as hygiene conscious, as you would otherwise be.

Can I be forced to work longer hours because of the coronavirus?

According to news reports, workers at Amazon's UK warehouses are being told to work compulsory overtime to tackle the huge spike in demand due to Covid 19. Whether you can be asked to compulsorily work extra hours depends on your contract of employment. If your contract has a clause in it that says you will be asked to do compulsory overtime then an employer is entitled to call on this at times of peak demand.

However, under the Working Time Regulations in the UK, overtime is limited to a maximum of 48 hours per week. This is averaged over a 17week period. It is best though to look at your contract of Employment as some employees opt out of the maximum weekly limit as part of their conditions of Employment.

Whether you are being asked to work extra hours or not, all employers have an implied duty to take reasonable care for the health and safety of their employees. That includes your physical and mental health. In addition, overtime should not increase any health and safety risks, for example, because staff are overtired whilst operating complex machinery or pickup trucks or delivery vans.

Am I entitled to not go into work because of the coronavirus?

As employment law solicitors we are not health and safety experts. All we can advise you on is what the law says. Section 44 of the Employment Rights Act 1996 enables an employee to withdraw from and to refuse to return to an unsafe workplace.

An employee is entitled to not go into their workplace if they are of the opinion that the prevailing circumstances represent a ‘’real risk of serious and imminent danger’’ which they can't avert.

For the purposes of the 1996 Act it is the opinion of the employee that counts. So if you think that conditions in your workplace are unsafe then it is your opinion that is relevant for the purposes of section 44 of the Act.

Many employers are struggling to get to grips with the implications of the coronavirus for their employees and their business and the changing times we are living in. For example, a fortnight ago you may not have been wanting to raise health and safety concerns and contemplating not going into work just because your employer has no hand sanitiser, gloves or other protective equipment to help keep you and your family safe.

What happens if I don’t go into work because of Covid 19?

If you decide, on health and safety grounds, not to go into work then under section 44 of the 1996 Act you are entitled to bring a claim for constructive dismissal and compensation if you can establish that your employer failed to maintain safe working conditions.

Safe working conditions aren’t static – so what may have been safe a few weeks ago may no longer be safe. An employer has to keep up with providing safe working conditions.

Does coronavirus have to be present before I say I cannot go into work?

Section 44 of the 1996 Act says that employees don’t have to wait until someone at their place of Employment either suffers injury or falls ill before they can act to secure suitably safe working conditions.

Whether your employer is providing safe working conditions is often a matter of looking at your particular Employment circumstances. A colleague falling ill may be one thing but a completely different matter if you fear that their risks of contracting an illness were increased because of a lack of hand washing facilities, sanitiser or gloves.

The legislation says that you can decide to not go into work (or withdraw your services) ‘’in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work….’’

Coronavirus and health and safety at work

It is an understatement to say that we are living in challenging times. For those going into work, to do frontline jobs, whether they are medics, receptionists or working in the supply and retail chain, there is a feeling that we must all pull together. However, that doesn’t mean that section 44 can or should be ignored or that your employer can think that they (and you) should carry on regardless. Now, more than ever, employers need to be carrying out risk assessments and assuring employees of the steps they are taking to protect you (and in turn your family).

If you don’t think that risks are being managed then you can use section 44 of the 1996 Act but it is best to take legal advice before you do so and to then inform your employer in writing of your decision and the basis of it.

Online employment law solicitors

If you are worried about your Employment or want to ask a question about health and safety at work and your rights then our online employment law solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry formto arrange a video conference, Skype or telephone appointment.

COVID-19 update: