The short answer to this question is yes. However if an employee reasonably believes that there is a serious and imminent threat to their health that cannot be reasonably controlled by the employer, any dismissal is automatically unfair.

Section 44(1)(d) of the Employment Rights Act 1996 allows an employee to claim that they have been subjected to a detriment in such circumstances and claim compensation. Watford employers should be undertaking risk assessments to establish that there is a safe working environment before requiring employees to return to work by identifying:

• any workplace risks

• protective measures required to protect vulnerable staff who cannot work from home

• staff who fall within the categories of 'clinically' and 'extremely clinically' vulnerable

• any cases of coronavirus (Covid-19) within a household of a returning employee

• any practical travel difficulties

• any childcare issues

Many employers are requiring their returning staff to complete a questionnaire so that they can make an informed decision about ensuring the health and safety of their staff. Any processing of an employee's health and those in their household must have a legal basis and be compliant with data protection legislation.

From July 1,flexible furloughing will be introduced and employers who bring back their employees to work will need to consider the above steps.

If an employee wants to continue to shield at home because they live with a 'clinically' vulnerable or 'extremely clinically' vulnerable person, an employer may need to allow this in the short term to avoid a claim based on section 44 above. When making a decision employers will need to assess the extent of the danger and whether the employee could take other steps to avert or reduce the risk to the vulnerable person.

  • Michael Delaney is a partner at award-winning law firm VWV, which has offices in Clarendon Road, Watford