Well, the day was bound to come, wasn't it? Fed up with the eye-watering pain to the economy, and invigorated by his convalescence at Chequers (Chequers?! - surely not his primary residence when staying at home), Boris has decreed that if you can't work from home it's time to get on your bike - or walk - and make for your workplace.
Lots of employers are hearing the Siren call (oh the mental image - Boris on a rocky outcrop, blond locks dancing to the breeze in the moonlight...), requesting that their staff now return to their (work)station. But what of Sue who suffers from anxiety and can't bring herself to leave her home, or Tomasz who worries that if he goes into work, his aged mum with whom he lives, will be placed at even greater risk? What of their understandable concern that being literally anywhere is riskier than being at home, as confirmed it seems by the Government's own suggestion that home working is to be favoured? What if they dare simply to say "no!"?
The Government would like us to believe that, at least under its direction, employers are in control of their businesses and staff. It's not just 'Controlling Coronavirus' that ministers have in mind. But, to extend my classical nautical theme a little further, there is a distinct risk that in answering the Siren's call, the ship of British business may whilst not being totally shipwrecked at least, find itself slammed against the rocks of employment law.
I refer particularly in this context to s.44 of the Employment Rights Act 1996; a little-known provision which protects employees against detriment on health and safety grounds. So, whilst you as an employer might think that Sue or Tomasz are being over-sensitive, selfish or even stupid, those giving them legal advice may take a very different view. Take a stand against them, and next you may be taking the stand as a witness in the Employment Tribunal (I know, it’s a witness box on this side of the Atlantic but that didn’t scan!). Worse still, Sue's claim may include a useful little reference to disability discrimination and Tomasz may himself have a claim of discrimination by association if his poor old mum is incapacitated.
It may not end there. The mere fact that neither can work from home may say something altogether more profound. Perhaps, for instance, Sue and Tomasz are more likely statistically to be employed in jobs where they have to be physically in the workplace - Sue because of her sex and Tomasz because of his nationality. The cherry on the cake may be that those concerns have been put forward in such a way as to make both individuals whistleblowers. A lawyer's dream come true!
It doesn't need to be like this, of course. There are things you can do and to find out more you should really should get in touch. In the meantime, our advice is simply to Stay Alert to such pitfalls.
If you would like any advice on this or any other employment issue, please contact a member of the Employment Law Team.