Following the introduction of COVID lockdown 3 on 5 January 2021, we have released a series of articles explaining the legal impact on eight areas of daily life. This article looks at some specific issues employers may face when trying to keep the workplace open and operating effectively.


If you are a business owner or manager, you may be wondering what your staff may or may not be allowed to do and how best to handle the situation. You will find guidance for employees in our article COVID and Going to Work but as an employer there are extra things you need to know.

Do you have to furlough employees?

The first of these centres around furlough. Some employees may want to be put on furlough and may suggest to you (or tell you!) that they should be. We are finding this surprisingly common amongst our employer clients.

To be clear, there is no obligation for you to put employees on furlough. In certain circumstances, such as when an employee is vulnerable and shielding and unable to work from home, you may decide that it is the right thing to do. However, your only legal obligation is to ensure that you are treating all employees fairly and are not discriminating against certain groups, such as disabled employees or those of a particular gender. This would breach the Equality Act and could lead to a discrimination claim.

If you are unsure whether any of your employees are protected by the Equality Act or whether your furlough proposals might fall foul of the rules, we would be happy to help clarify your situation.

Ensuring a COVID-safe workplace

If you have had to close your workplace, or you have had employees on longer term furlough then you may be unsure what needs to be done to get them back to work.

The first thing is to ensure that the environment is “COVID safe” and that social distancing measures are in place as appropriate. A health and safety risk assessment should be carried out to ensure that the workplace is as safe as possible. It should identify risks, consider their severity and document how you are addressing them. This is likely to be a combination of protective screens, hand sanitiser and washing, masks, signage and distancing measures. As COVID testing is rolled out more widely you may also be able to take advantage of local testing centres, some of which will test staff without symptoms for peace of mind.

It is very important that your risk assessment is in writing and available to your staff. Be warned that the Health and Safety Executive are carrying out “COVID safe” inspections at very short notice, so a written risk assessment will help demonstrate that you have taken the risks seriously and that your business is compliant, which will help to avoid fines and sanctions. Listen to your employees if issues are raised – there are clear and obvious risks to ignoring valid concerns.

For more information on COVID and keeping the workplace open

If you have further questions on how to keep your workplace safe for employees or how to manage furlough and other leave then we are here to help. Contact the team at Backhouse Solicitors and we will arrange a free initial consultation with one of our expert employment solicitors.

The Backhouse Solicitors Team

Tel: 01245 893400
Visit: 17 Duke Street, Chelmsford, Essex CM1 1JU (Currently only for pre-booked appointments)

Or send us a message through the Contact Us page on this website