Firms face legal ‘minefield’ when staff return to work

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Employers face a ‘minefield’ of legal risks when they bring staff back into the workplace, especially if they ask workers to return too quickly or fail to take individuals’ circumstances into account.

The warning came from law firm GQ Littler, which said organisations could find themselves being taken to an employment tribunal for issues including disability discrimination, health and safety breaches, automatic unfair dismissal, or indirect sex discrimination if they adopt a “one-size-fits-all” approach to the return to work.

Partner Sophie Vanhegan advised firms to tread carefully to avoid reputational damage or having to defend costly tribunal claims.

“Employers are embarking on an unprecedented process and that means a minefield of potential legal risks for employers to navigate here, alongside how practically to get their employees comfortable with returning to the workplace,” she said.

“Disputes are bound to arise if employers try to apply a one-size-fits-all approach regardless of employees’ individual circumstances. Coronavirus is a hugely important health issue and consequently, highly emotive.”

The law firm warned employers to be cautious when asking staff with pre-existing conditions to return to work, especially if they are shielding according to government guidance. A claim for disability discrimination could arise if staff are placed on unpaid leave or dismissed if they cannot work from home while shielding, or employers could face claims for failing to make reasonable adjustments if they do not consider altering employees’ tasks to enable them to work from home.

“We may also see a spike in complaints of indirect sex discrimination as employers attempt to get staff back into the workplace if normal childcare providers and schools remain fully or partly closed, and any working arrangements requiring employees to be back in the office or working particular hours place women at a particular disadvantage which cannot be justified,” said Vanhegan.

Claims could be made because of a litany of working environment issues. For example, if workspaces are not adapted so that employees can comply with social distancing guidance, or if employers phase the return to work too quickly.

An employee may also bring a claim of automatic unfair dismissal if they can prove that they were dismissed after refusing to attend work because they thought it would place them in serious and imminent danger.

Organisations should be aware of the protections offered to whistleblowers, the law firm said, as a complaint that a workplace is unsafe could amount to a protected disclosure.

“At this juncture, employers need to ensure they reopen their workplaces in accordance with government guidance and carefully consider the practical implications and logistical issues for their workplaces. This must be done alongside carefully ascertaining their employees’ individual circumstances before requiring staff to come back into the workplace,” Vanhegan said.