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On Monday 4th January 2021, due to a consistent rise in COVID-19 cases in England, the country was plunged back in to a national lockdown, heralding the return of the ‘work from home unless it is unreasonable to do so’ orders.

It has since been reported, however, that in the period of 6th – 14th January, Health and Safety Executive (HSE) investigated nearly 4,000 cases of these rules being breached, leading to the question: “can my employer force me to come in to work?”

The answer is not a simple one. Government guidance states that employers should not force employees to work in an unsafe work environment and employers have been tasked with playing their part in the national effort to reduce the devastating spread of coronavirus. Workplaces that are permitted to remain open during the national lockdown should be safe and COVID secure. The Government have set out guidance for employees, and outlined eight priority:

  1. Complete a COVID-19 risk assessment
  2. Clean more often
  3. Remind visitors to wear face coverings
  4. Ensure everyone is social distancing
  5. Consider ventilation
  6. Take part in NHS Test and Trace
  7. Turn people with coronavirus symptoms away
  8. Consider the mental health and wellbeing aspects of COVID-19

Where possible, all staff should be enabled to work from home unless this is unreasonable and they cannot do their work remotely i.e. healthcare professionals, teachers, childcare providers, transport workers, construction and manufacturing workers, funeral directors and essential retail workers. Clinically extremely vulnerable individuals should also not attend work, even if they are unable to work from home. Employers should consider alternative roles or shift patterns for these individuals or consider the Coronavirus Job Retention (furlough) Scheme where alternative arrangements are not possible.

Employees who struggle to attend the workplace due to childcare (now that much education is long-term remote), or other caring duties, can consult with their employer as to considering placing them on the furlough scheme, however employers are not required to fulfil these requests.

If employees do not consider their workplace to be COVID secure or adhering to government guidelines, they can contact their local authority or the Health and Safety Executive, which can impose sanctions on companies. Employees may also be protected from dismissal under Employments Rights Act 1996 (section 44) for refusing to attend work if they believe that doing so puts them in ‘serious and imminent danger’.

In short, there is no one answer to whether or not an employer can make an employee attend the workplace during lockdown. There should be clear, consistent communication between businesses and staff regarding COVID-19 procedures in the workplace.

If you require information regarding your rights at work, unfair dismissal after refusing to return to a dangerous workplace, or any other employment law query contact a member of our expert employment team today on 0191 281 6151 or fill out the form below.

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