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.

Between 12 June and 13 July 2014 employers will face a number of issues relating to the World Cup games from requests for annual leave, to suspicious sickness absences and high levels of internet usage during matches.

As this World Cup is being held in Brazil most matches will kick off between 5:00pm and 11:00pm.

ACAS have published some guidance to employers. This urges employers to be as flexible as possible for this period of time to try and maintain a productive and motivated workforce. They suggest that, in advance of the World Cup or other similar events, that the employers make their position clear about issues such as booking time off, watching TV at work, sickness absences and internet usage.

Employers should consider :-

Annual Leave Requests

Employers should have a policy that states how much notice is needed to book annual leave and that requests are always subject to the employer’s agreement. This should prevent too many employees asking for the same time off or doing so at the last minute. ACAS suggests that employers might want to operate this policy with more flexibility during the World Cup as it is for a short period of time. However that is entirely down to the business and its requirements for employees work.

Given the likely kick off times in this World Cup most games will be in the later afternoon and evening so it might be more sensible to offer a more flexible working day if a large number of employees want to take the same days off.

Sickness Absence

Employees taking days off sick to watch a match or the day after a match due to a hangover can cause serious problems for an employer. Employees should be reminded of the company policy on unauthorised absences and absence levels should be carefully monitored during periods like this. Back to work meetings with any employees taking sick leave can be an effective deterrent to this sort of absence.

Alcohol at Work

It is useful to remind your employees what your policy on being under the influence of alcohol at work is and if necessary remind employees that they may be subjected to disciplinary action.

If you plan to show matches in the workplace and prove or permit alcohol to be consumed it is also worth having a clear policy about the expected level of behaviour. Fox Whitfield can provide employers with these sorts of policies.

Internet Usage

Games that take place during working hours are very likely to coincide with a big increase in the use of twitter, facebook and sites streaming matches and commentary. Again it will be worth reminding employees about your policy on the use of the internet during working.

Paul Whitfield can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.