Understandably the unions are making much of the safety of their members who may claim that they are not willing to work without PPE. Working hours and practices may need to be adjusted to reflect reduced capacity with public transport. Subject to the terms of the contract of employment and appropriate consultation it might be reasonable to ask workers to adjust their working patterns.
What if an employee refuses to attend the workplace with concerns over safety? There is an obligation to follow reasonable instructions, there have been a number of cases on this very point. It may be fair to dismiss for refusing to act on a reasonable instruction but all of the usual ways of dealing with such refusal should be exhausted first, including warnings. An Employment Tribunal would expect an employer to be able to demonstrate clearly what the employee had been asked to do and what reasonable precautions were taken for their health and safety. Clearly complying with Government guidance on workplace safety will be crucial.
Asking an employee to work in potentially hazardous circumstances may amount to repudiatory conduct by the employer and lead to a claim for constructive dismissal. An employee faced with what they consider to be an imminent risk (including from a colleague) may just decide to leave their workplace on the spur of the moment. They should not be subject to a detriment (e.g. disciplinary action) if there was a serious and imminent risk which they could not reasonably be expected to avert. There will be heightened sensitivity around what constitutes a risk.
There may be discrimination issues to consider with the apparently disproportionate impact of the virus on some ethnic communities.
Most employers will work through any issues and sensible compromises will be reached. As always communication is key.
Please do not hesitate to get in touch if you have any questions for us. Our Head of Employment, Iain Jenkins, has been putting together our updates.
Please contact him on firstname.lastname@example.org if you require any assistance.