But, even if the workplace is as safe as possible, could employees (and their employers) still be risking breaking the law by returning to work?
Currently, under the law (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the "Regulations")), no one is allowed to leave their house without a reasonable excuse. A reasonable excuse includes the need to "work" but specifically "where it is not reasonably possible for that person to work…from the place where they are living". The Regulations also require certain businesses to remain closed during the current emergency period. Anyone who contravenes the above restrictions commits a criminal offence. They could be given a direction, issued with a fixed penalty (of up to a maximum of £3,200) or charged.
In addition, if an offence under the Regulations committed by a body corporate is proved to have been committed with the consent or connivance of any officer or to be attributable to any neglect on the part of such an officer, the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and punished accordingly. Here, an “officer” means "a director, manager, secretary or other similar officer of the body corporate".
The above clearly has direct implications for everyone who works, but what about employers? Even employers who are permitted to open could be committing an offence if their employees or workers physically attend work when it is reasonably possible for them to work from home if they gave the instruction to the relevant individual(s), in which case they would be aiding or abetting the offence. Ultimately, this means that, as the law stands today:
- Employers should carefully consider whether it is possible for each individual in their organisation to work from home;
- This may not be a binary question. Any particular employee may be perfectly able to do their job at home on some days but, on other occasions, this may be impossible. This could be due to the nature of particular tasks or aspects of their home environment;
- Whenever an individual can work from home they should be instructed to stay at home (to avoid committing an offence);
- Where it is reasonably possible for an individual to work from home, they should not be instructed to attend their place of work (even if that place of work is permitted to be open under the Regulations). Currently, any such instruction by an employer would be unlawful; and
- Even where a business is permitted to open and its employees cannot work from home, that is not the end of the story. The employer must return to its general legal obligations before finalising any plans. And the Government's COVID-19 secure guidance is clear: employers should be considering who is "needed" on-site, for example workers in "critical" roles.