29 May 2020

Can employees refuse to travel to work during lockdown?

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When planning a safe return to work, employers may be faced with employees who have concerns about traveling to work. Equally, employees may be in a state of uncertainty and confusion. The question which then arises is, what should employers consider when asking their employees to travel to work?

Health and Safety legislation requires employers to provide a safe place of work, whether it be the office or home. However, it does not place a specific obligation on employers to consider an employee’s commute to work. Nevertheless, the legislation is supplemented by various other relevant considerations that both employers and employees should be aware of.

The government has issued clear guidance stating that public transport should only be used where essential and people are encouraged to cycle, drive, or walk to work. Employers ought to be mindful of an employee’s concerns about commuting to work as for the most part, the government continues to suggest that people should continue to work from home unless it is impossible to do so. On a practical basis, it should also be considered whether it is not possible or if it is particularly burdensome to expect an employee to drive, cycle, or walk to work.

ACAS has issued guidance in-line with the government, to suggest that where possible, employees should be allowed to work remotely. ACAS further suggests that employers should not assume work cannot be done from home and encourages employers and employees to be practical, flexible, and sensitive.

As per section 44 of the Employment Rights Act [1996], an employee has a right not to be subjected to any detriment by any act, or deliberate failure to act by his employer where he left work, refused to return to his place of work or any dangerous part of his place of work because he reasonably believed to be in circumstances of danger which are serious and imminent and which he cannot be expected to avoid.

Although section 44 does not make express reference to commuting to work, it is arguable that it would be applicable in circumstances where an employee refuses to travel/return to work due to the possible dangers of using public transport for non-essential reasons during the lockdown. The courts have also shown the inclination to consider commute to work as an important and relevant factor. In Edwards and other v The Secretary of State for Justice [2014] UKEAT/0123/14/DM, the Employment Appeal Tribunal allowed an appeal on the basis that the Employment Tribunal did not correctly consider the reasonableness of the prison officers’ belief that the manner in which they traveled to work placed them in serious and imminent danger. The facts of this case suggest that the travel in question was not of the usual nature. However, arguably, neither is non-essential travel during the pandemic.

It is therefore important for employers to be mindful of their employees’ concerns and mental state and conduct proper risk assessments when planning a safe return to work. Having said that, it remains open to employers to carefully consider disciplinary actions against employees who unreasonably refuse to return to work.

If you are an employer faced with questions from your employees regarding a safe return to work or an employee unsure about your employment rights during the pandemic, we are here to help.

Disclaimer:

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.

About the Author

Mahnoor Shahid
Mahnoor has extensive experience in dealing with various types of in-country and out-of-country immigration matters. This includes advising and assisting clients on a vast spectrum of immigration applications, ranging from Entry Clearance to British citizenship.

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