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"The problem with employment law is that it didn't anticipate the situation we find ourselves in"

Tuesday 23 February 2021

"The problem with employment law is that it didn't anticipate the situation we find ourselves in"


‘Work from home unless critical to the running of your business’ is the message from our government. As a result of this, your employer is under an obligation to do what they can to enable you to do this.

It is not you, as the employee, who has to create a home office: the circumstances require employers to introduce methods to comply with the latest government restrictions, while making sure they provide you with a safe place of work.

What if – because of your job role - working from home is not possible? What if your employer demands you to come to work? The two circumstances are different.

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Pictured: "The pandemic does not lift the employer’s legal obligations regarding redundancy."

The first means you are critical to the running of a business, for instance you are a shop assistant or a public servant carrying out a public service (a police officer, a refuse collector).

In such situations your presence can be insisted upon by the employer but it does not absolve them of their duty to provide you with a safe place of work. In such a circumstance the employer will be required to adopt the currently accepted measures to prevent the spread of covid (regular cleaning, PPE, distancing etc).

You should not accept working in an environment where your employer is not fulfilling his or her duties.  Contracting the virus can be fatal. If your employer is not dealing with the matter satisfactorily, you should make your views and concerns known to your employer and if that does not resolve the matter, seek urgent advice. 

If it is not essential that you are physically present at your workplace, but your boss insists you come to work, a difficult situation arises. Your contract of employment may set out your normal place of work, and that you work from other places at your employer’s request.Not coming to work is a breach of your contract.

However, as I have noted, an employer is required to take reasonable steps to provide you with a safe system of work. Requiring you to come to work, putting in place preventive measures (PPE etc) rather than taking steps so you can work from home is not reasonable steps to ensure your safety.  During the time the government is still telling people to work from home, an employer demanding a non-essential employee come to the office will be on very shaky ground.

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Pictured: "Requiring you to come to work, putting in place preventive measures (PPE etc) rather than taking steps so you can work from home is not reasonable steps to ensure your safety."

The obligation to look after you as an employee is not ‘one size fits all’. Accordingly, if you are in a ‘vulnerable category’ your employer may have to put in extra measures. For people who are highly vulnerable, an employer cannot demand your attendance.  If you can’t work from home, it may be the case you cease working but still receive pay.  

The problem with the employment law as it exists, is that it did not anticipate the situation in which we all find ourselves. The key point during this difficult time is that employers and employees will probably need to compromise. Like all relationships, communication is key. There must be open and frank dialogue, and genuine attempts by both sides to understand the other’s concerns and difficulties. 

Unfortunately, it is very likely businesses will suffer badly and some may not survive at all. Or, survival may only be possible at the cost of reducing staff. The pandemic does not lift the employer’s legal obligations regarding redundancy.

The requirements and processes set out in the law must still be followed. Further, employers must be extremely careful not to discriminate during these difficult times between those who can return to work and are willing to do so and those that are high-risk vulnerable and cannot for risk of contracting the virus. 

My words of wisdom: if you think you have been treated unfairly or your rights ignored first, talk to your employer, and perhaps record your concerns in writing; and then, if things do not improve, take advice immediately. 

Advocate Blakeley's column first appeared in February's edition of Connect Magazine, which you can read HERE.

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