Recently, Prime Minister Boris Johnson announced, amongst other things, that:
“Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home”.
Unfortunately, this was fairly ambiguous. What does “absolutely necessary” mean. Is he referring to the travel being necessary or the work?
Many news sites quickly reported on this and unfortunately there seemed to be some paraphrasing of the PM’s message. Instead of “where it is absolutely necessary”, this had been reported as “essential work”. For obvious reasons, this caused a huge amount of uncertainty for employees whose employers asked them to attend work the next day.
However, very quickly afterwards, the Government produced a document called “Full guidance on staying at home and away from others” on the Gov.uk website.
This document states:
“Travelling to and from work is permitted but only where this absolutely cannot be done from home”
This is somewhat clearer, it indicates that people can travel to and from work if it absolutely cannot be carried out at home.
Also, Andy Burnham, the Mayor of Greater Manchester, then tweeted the following:
“OK, final tweet tonight everyone. Have now spoken to No10 & had it confirmed that people CAN leave home to work – as long as they fully observe the 2m distancing rule. Seems to me to be in conflict with the big #StayAtHome message. But that’s the official policy. Over & out!”
Therefore, it would appear that the message is that where possible, any employee who can work from home should be permitted to do so. Only where this is not possible for the work to be carried out at home, should an employee be required to attend work.
However, it is important that employers who require staff to attend work should ensure that the health and safety of their employees is paramount and enforce social distancing of at least 2 metres and provide sanitisers, washing facilities etc.
If an employer has a staff member who is refusing to attend work and is not self-isolating or social distancing due to either having the symptoms, living with someone with the symptoms or is on the list of high risk conditions, then they should discuss with the employee the reasons as to why they are not attending work before taking disciplinary action.
As an employer, if you believe that your request is reasonable and lawful, and the employee’s refusal is unreasonable, then this could be dealt with through the disciplinary process as mentioned above. However, these are unprecedented times and the question of reasonableness should be taken in the round. It may be advisable to consider if there are any alternatives available to you such as suggesting they take unpaid leave or annual leave to avoid disciplinary action. This may be a short term solution, given it is possible that the Government may change the rules in the next week or so in any event.