Column: Can you force an employee back to work?

This article is written for the Stray Ferret by Harrogate employment lawyer Richard Port. Richard is Principal Solicitor and Founding Director at Boardside legal. Over the next 3 weeks he will explore the issues raised for employers and employees returning to work post furlough. This article is not legal advice – more a look at the complexities of the current situation. 

Recent government announcements have suggested that the current furlough guidance might shortly be changed and that those who can go back to work safely should now do so. It is worth noting that it is currently a criminal offence for a person to go to work, when such work can reasonably be done from home.

However, if the changes are made, I’m sure that many people will want to return to work straightaway, but there will be many who do not. Indeed, I have dealt with a number of company clients in the last few weeks who are having to grapple with the conflict between ending furlough and dealing with reluctant returners: in my case a food production business (ABC Ltd) and the reluctant ‘Fred’.

First and foremost, the place of work needs to be covid safe, to reduce the potential for transmission as much as possible. This means providing adequate PPE and having a robust hygiene system in place, and compliance with social distancing rules.

Imagine that ABC Ltd has done it all; it is the paragon of compliance and hygiene. Nonetheless, despite his employer being an essential service, Fred is reluctant: he is worried, claiming that he has a ‘new’ medical condition (understood to be asthma) for which he must take steroids. Fred considers himself to be clinically vulnerable, though he does not have any form of medical certificate signing him off work. ABC Ltd has kept in touch with Fred during furlough and is now asking him to return to work. Sometimes getting hold of Fred has been quite difficult, despite being “house-bound”. We understand that Fred enjoys his golf.

Of course, there will be a wide variety of reasons (supported by various legal protections) why employees may be reluctant to return to work which should be taken seriously. In other cases, like Fred, employees may have no good reason for refusing. Leaving this aside, what options does ABC Ltd have in relation to Fred? As difficult as it might be, ABC Ltd needs to tread carefully. Employers should work on a case-by-case basis and ensure that they have carried out thorough risk assessments and implemented relevant covid safety measures.

Ultimately, ABC Ltd may seek to stop paying Fred in the circumstances, or even to dismiss him, but both of these courses of action for refusing to return to work are fraught with danger and could lead to employment tribunal claims being raised, particularly if the employer’s health and safety processes are short of what is reasonably practical to put in place.

It is a complicated subject, but my experience is that many organisations are now reviewing their working practices and looking at ways to create a more adaptive, innovative and resilient workforce. If ABC Ltd gets this right, it will ensure its long-term viability and the health and well-being of its workforce, with better morale and higher productivity.

 

Next week, Richard looks at the rights of the employee and looks at the case of Fred.

 

 

Calls for temporary cycles lanes and lower speed limits in Harrogate district

Cycling campaigners and environmental groups in the district have called for “pop up”  temporary cycle lanes and lower speed limits to encourage people to continue cycling and help walkers with social distancing.

Jemima Parker of Zero Carbon Harrogate said the group has written to Andrew Jones MP and David Bowe, the county council Corporate Director Business and Environmental Services, asking for temporary changes.

Zero carbon Harrogate would like to see a 20mph speed limit in urban areas, more street space allocated for “active travel” (pedestrians, mobility scooters and cyclists) and encouragement for cars to be parked on the road rather than the pavement.

Harrogate District Cycle Action has published a list of “post-lockdown travel improvements” that, amongst others, include:

In Knaresborough, town councillor Hannah Gostlow has urged the County Council which is in charge of highways to reduce the speed limit to 20mph between King James School and High Bridge in Knaresborough and around the towns schools, as well as increasing cycle lanes in the town.

“Our High Street is usually a fast and busy road that discourages cyclists, narrows our footpaths for pedestrians, and disconnects shops from the town centre, this scheme aims to let our town recover and breathe again. As well as a 20mph scheme I would also like to see cycle lanes where possible, and local businesses encouraged to take a lead on green transport initiatives”

The calls for parking bays to be made into cycle lanes in Harrogate are at odds with Independent Harrogate, the body which represents the town’s independent retailers. It’s called for free parking to be kept indefinitely to encourage more people to come into Harrogate by car when the shops finally open.

The Stray Ferret has asked North Yorkshire County Council for a comment. It said it was working to give a response as soon as possible.

 

 

 

 

 

NHS workers prepare to return to front line across Harrogate district

Across the country, recently retired doctors, nurses and other NHS staff are being invited to return to work. 

The government has vowed to relax restrictions for such workers to enable them to help out as medical services face growing demand, and as current staff fall ill themselves.

While they won’t be invited as part of the current scheme, there are also NHS staff who have been on career breaks for other reasons now preparing to offer their services again. 

GP Joanne Gregson, who has been off work since having daughter Edie in October 2018, has contacted the Local Medical Committee to find out where she is most needed. For her, work will be very different when she returns than it was when she left.

“We’re all subject to the self-isolation rules too,” she said. “If Edie gets a temperature, I’m out of action for a couple of weeks. 

“A lot of practices are doing video and telephone consultations now, trying to limit face-to-face contact. That should help to keep as many of us working as possible.” 

Support after career break

Dr Gregson had already been considering a soft return to work through the GP retainer scheme, which offers mentoring to doctors coming back to practice after a break. However, with practices now in need of help to cope with high demand, she may return to work in one of the most difficult periods in the history of the NHS. 

“It is anxiety-provoking because I was planning to go back in a very controlled manner,” she said. “As doctors, we’re very conscientious. We don’t want to make mistakes, we’re human and we want to do our best. 

“I wanted to do some courses and get back up to speed. Going back as a retainer meant after each appointment I could speak to a mentor and go through things. Now, I know everyone is going to be working at their capacity and as much as people will try to help, they may not be able to find that extra time.” 

With colleagues and friends working in front-line NHS care, Dr Gregson said she is hearing stories about their experiences:

“There’s a bit of disgruntlement about social distancing. We aren’t really seeing people doing it. I can understand that, because it seems unreal still, but we’re seeing what’s happening in Italy and it is worrying. The message coming from my colleagues is, ‘do your bit. This is coming and we all have to act responsibly’.”