COVID-19 and the Great Return to Work – Employer Responsibilities and Employee Rights

Faced with the prospect of re-opening workplaces, employers and employees have been thinking about the changes that may need to be made in order to keep the workplace safe. In this article we consider the legal responsibilities of employers, and what rights the employees may have against an employer which has not discharged its duties.

RESPONSIBILITIES OF EMPLOYER

The main issue that should be remembered is that it is down to the employer to keep the employee safe – the law places the duty on the employer, not on the employee.

The law is set out mostly in the Health and Safety at Work Act 1974, together with various regulations, depending on the sector involved. The duty is on the employer to do a risk assessment and to put into action the findings of that assessment, by setting up a safe system of work, and then implementing it and making sure that it is followed.

It is also important to note that this is a duty that cannot be delegated. The government has issued some sector-specific guidance, and there is also general guidance from the Health and Safety Executive (HSE). Following this guidance, however, is not enough, and it may be that, for some employers, their own specific work places require actions which may even be contrary to the guidance – for example, where the guidance says PPE (personal protective equipment) may not be necessary, but, having undertaken a risk assessment, the employer decides that it is important for its own employees, then the employer must provide it.

For the current situation, there are a number of issues which are likely to be of importance for the risk assessment. These include social distancing, how to ventilate the work place, and hygiene (both hand washing/sanitising and cleaning of the work place and equipment). The law is unclear as to whether the employer also has a responsibility to consider employees’ travel to work, however it would be good practice to do so, particularly given the government’s plea for people to avoid public transport. One solution for some employers may be the arranging of a socially-distanced and well-ventilated mini bus.

There will also be the question of whether certain employees should not return for the time being because they are shielding. The employer should consider if there are any reasonable adjustments that can be done for them, such as working from home, being given alternative work to do from home, or other options depending on the specific workplace. There is a risk of a disability discrimination claim if this is not done.

Those with childcare issues, while schools are still closed, may also have a problem with going back to work. The government has asked employers to be flexible about this, however it is also a possibility that not permitting female employees in this situation to work from home may amount to indirect sex discrimination depending on the situation.

The system proposed should also then be tested, perhaps by inviting a sample of volunteers back before the rest of the staff. In addition, staff should all be trained in the new procedures.

It is essential for harmonious employee relations for there to be communication. The law sets out how consultation on health and safety should be done, for work places with recognised unions and those without. If employees are involved in this consultation, it is likely that they will have more confidence in the measures brought in by the employers.

RIGHTS OF EMPLOYEE

At present, there is no legal right to work from home, although the government guidance is that during the coronavirus crisis work should be done from home where it is possible.

If employees do have to go back, the great majority of employers will do their best to ensure that employees are kept safe. It may be, however, that even with a proper risk assessment and changes made by an employer, the employee still reasonably believes that their working practices are putting them at risk and is afraid. What can an employee do in this situation?

They should first raise the issue with their employer. In some circumstances, this may be a protected disclosure and the employer prevented from taking any action against the employee for doing so. 

If it is not resolved, the employee could then report the matter to the HSE. If they find the employer has not complied, the HSE can enforce the employer’s duty by bringing criminal proceedings. The employee could also bring a claim for damages under various health and safety regulations if they are aggrieved. An employee who has suffered damage to their health can also bring a claim if their employer has been negligent and that the damage can be proved to have arisen from this negligence.

If an employee has a reasonable belief that they are faced with a threat which is serious and imminent, and that it cannot be reasonably controlled, in an extreme situation they can refuse to go into work. They have a right not to be subjected to any detriment if they do this and can bring a claim if they are unreasonably disciplined. An employer who withholds wages in such a case can be faced with a constructive dismissal claim if the employee leaves.

Should the employee be dismissed for raising a concern about health and safety, then, if proven, this would be an automatically unfair dismissal, no matter how short a time the employee has been with the employer.

It is therefore best practice for an employer to take these concerns seriously and try to resolve the situation, rather than resorting to disciplining the employee. It has to be emphasised, however, that each situation depends on its own facts.

In summary, therefore, the employer has a non-delegable duty to protect the employee by doing a risk assessment and making sure it is implemented. The best way of dealing with concerned employees is to make sure that there is comprehensive communication and involvement with the return to work process.

 

Astra Emir, May 2020.

Disclaimer: This article is not intended to replace legal advice. Each case depends on its own specific facts.