With the government announcing yesterday that employers are free to bring staff back into the office, what happens if you don’t want to go?

It’s a complex picture.

Your employer has an obligation under the Health and Safety at Work Act 1974 to provide a system of work that as far as possible is free from risks to health and safety. How that obligation will be interpreted around covid is not yet clear, but your employer should be taking protective steps for staff and given the surging case numbers at the moment, that’s potentially a hefty obligation. It’s also worth knowing that it’s potentially an automatically unfair dismissal if you are dismissed for objecting to unsafe working practices.

But what if your workplace is reasonably safe for most staff, but you don’t want to go to it any more?

If your reason relates to an underlying physical or mental health condition, or childcare needs, your position is slightly stronger than if you’re just not keen.

Any underlying, medium to long-term health condition that you may have, will probably count as a disability that gives you disability discrimination protection under the Equality Act 2010. This includes mental health problems. Having a disability obliges your employer to make reasonable adjustments to your workplace for you. The exact nature of those adjustments will depend on how likely the adjustment is to help alleviate any disadvantage caused by your disability in the workplace, and also the resources that are available to your employer.

Working from home is now a difficult adjustment to refuse as if you have worked from home throughout the pandemic, as it will presumably cost your employer very little. It might well be a reasonable adjustment to allow you to continue working from home for longer than members of staff who do not have a disability, even if your employer’s personal preference would be that you were back in the office. Even if the office itself feels quite safe, you could seek a reasonable adjustment to avoid commuting in crowded trains if that prospect is exacerbating a mental health problem such as anxiety, or you think it will increase your risk of catching covid more than is reasonable given your health problems.

If you have found that working from home has made your childcare position easier to manage, but your employer is demanding a full-time return to the workplace, you could put in a formal flexible working request. If you agree to go into the office at least some of the time (perhaps as little as one day a week), it is hard to see how this could reasonably be turned down if your role has been done from home on an ongoing basis for months’ on end.

Sometimes the rejection of an application can give you a potential claim for indirect sex discrimination – which is where a rule, policy or practice which someone of a particular sex is less likely to be able to meet than and this places them at a disadvantage to the opposite sex. So women are traditionally less likely to be able to attend work in person and full-time due to childcare demands, than men are.

There are many other areas to consider as well. What were you told would be the position when you were recruited? Have you been given a reasonable period of notice about the change? How has it been communicated to you and were you consulted? Does your employer want everyone back, or are they deliberately targeting you as an individual? These factors will all affect whether a command to return is a reasonable management instruction that you need to adhere to for fear of disciplinary sanction, or if you might be able to successfully resist.

At Fox Whitfield we can help you to navigate potential problems in your employment from the earliest stages of difficulty. Please contact Sarah Russell on 07985 106 233 or sarahr@foxwhitfield if you would like help.

Boris Johnson and Dominic Cummings – the Brexit bromance has exploded spectacularly all over the papers. The thing that stands out to an employment lawyer about this week’s very public spat, is just how much data Cummings has retained in his possession relating to his former employment.

Cummings’ blog says  “I have made the offer to hand over some private text messages, even though I am under no legal obligation to do so….”

We would really love to have a look at that man’s contract of employment. Most employees, especially senior executives, have extensive clauses in their contracts of employment or service agreements that govern what they are allowed to do with confidential information both during and after the termination of their employment. The nannies in C-list celebrity families are bound up in more restrictions about what they can say than Dominic Cummings appears to be.

From an employment law perspective, the whole thing is astonishing. obligations in a contract of employment usually last in perpetuity and employers take them very seriously. Problems around them often arise in relation to restrictions on working with clients and competitors in a subsequent role, or sometimes due to whistleblowing.

These issues are complex and worth seeking proper legal advice on. We regularly assist employees who are struggling with these problems at Fox Whitfield.

If you think we can help, please contact Sarah Russell on 07985 106 233.

Sadly many people will be made redundant in the coming weeks and months. This is an interesting article by the Telegraph about how to negotiate the best deal https://www.telegraph.co.uk/money/consumer-affairs/job-risk-coronavirus-negotiate-best-settlement-deal/

We would add to this that the following are crucial:

1. Settlement agreements often contain a clause that says that your offer won’t be valid if you have received or are expecting an alternative offer of employment or a self-employed work. It is a good idea to get the agreement negotiated and signed off asap (even if the termination date is well into the future) so that you can safely commence your job search.

2. Many of our clients have restrictive covenants in their contracts of employment – clauses that will prevent you from working elsewhere in your industry. Clients sometimes assume that these are unenforceable or won’t be enforced and we often advise where this assumption has proven false. It is very important that you understand these restrictions and that they are removed or reduced via the settlement agreement.

3. Only speak to your immediate family about what is going on. Many settlement agreements contain retrospective confidentiality clauses that become a problem if people have spoken to friends or colleagues about problems at work.

4. Trust your gut. If you feel there is something not quite right about how you are being dealt with by your employer, you are probably right. Start taking notes of the conversations you have with them and seek legal advice at an early stage.

5. Instruct a good solicitor. You don’t have to come to us with a completed agreement. We can advise you on negotiation strategy behind the scenes, or conduct the negotiation for you. It’s what we do for a living, so we’re experienced at maximising the amount on offer whilst preserving your reputation.

Fox Whitfield remains able to help both employees and employers with queries about Covid 19.

We have been assisting employees with settlement agreements and redundancy advice, and providing employers with furlough agreements and other help with staffing issues.

We have a nationwide client base whom we have been advising remotely for years. Covid 19 restrictions are no impediment to providing swift, affordable advice tailored to your situation. Please get in touch.

Sarah Russell of Fox Whitfield can help.

Are you exiting BT under the Early Leaver Scheme? Sarah has helped numerous BT employees.

Whether you are leaving genuinely voluntarily, or feel that you have been backed into a corner where taking redundancy is the only real option, Sarah can assist. She knows the BT settlement agreement well and knows which clauses they are likely to be prepared to negotiate on and which they are not. She provides prompt, practical advice.

Please contact Sarah on 07985 106 233 or sarahr@foxwhitfield.com.