Experts reckon that an interesting body of law is going to emerge from the coronavirus pandemic.

Prior to this, cases arising from employees who felt they had been harshly treated when they had refused to work, because of their perceived danger of doing so, were pretty rare.

Likewise, cases where employers were held to have treated employees unfairly were limited to just a few high-profile tribunal decisions.

We are fairly certain this is about to change. Because until now, dangerous workplaces were fairly well identified, and there were very strict procedures in place to manage the risk. And, there were employees who were judged, by and large, to understand the risks they were taking.

The problem is that it takes an extraordinary situation to produce difficult cases. Many employers may not like the results of judges’ deliberations.

The crucial piece of legislation is the Employment Rights Act from 1996. It  has been around a long time, and lays out the actions that workers can take if they believe they are in “serious or imminent” danger at work.

The Government has already stated that coronavirus poses a “serious and imminent” danger to public health. It will, therefore, not be too much of a stretch for Tribunals to rule that any workplace where social distancing and appropriate measures are not fully complied with, would present a serious and imminent danger to an employee.

And crucially, it is not whether the employer deems the danger to be serious and imminent, but whether the employee believes it is. This presents employers with a real challenge, because if they are to protect themselves, they need to be able to demonstrate that the employee was unreasonable in their belief that there was a danger, something that could be quite hard to do.

Once an employee has decided reasonably that under these terms the workplace is an unsafe place to be, there are a range of appropriate measures they can take. They could leave work, they could refuse to attend work, or they could take appropriate action to mitigate the danger themselves.

And by taking such action, the law lays down that they can neither be dismissed or suffer any detriment because of the action they have taken, providing it is appropriate.

What does this mean?

Obviously, it depends on the circumstances. But, employers need to manage the workplace properly. And, they should not place unreasonable demands on their employees in the current climate. 

Employers cannot take disciplinary action, or dismiss an employee if they reasonably  believe they are in “serious or imminent” danger, and consequently take appropriate action. In legal terms, the employee cannot suffer any detriment – which can be interpreted very widely. Bullying, harassment, missing promotion, being given unpleasant tasks, or being offered reduced pay are all detriments.

Some experts even argue that placing such an individual on furlough could, in some circumstances, be viewed as a detriment. In other words, the employee was being penalised 20% of their average earnings because the employer could not provide a safe enough environment for them to work in.

As we enter the next stage of the pandemic crisis, and employers start to look at how their business will evolve, redundancies and dismissals may well follow. It is important that employers protect themselves from the risk of further litigation, especially in an era of claims management companies might be prepared to take on some high-profile cases.

The risk is particularly high in many health and safety cases, as there could be unlimited damages, with no qualifying service criteria.  Remember also, it is not just employers that can dismiss, employees can claim constructive dismissal, or make whistleblowing claims if employers fail to deal with health and safety issues.

Not only could there be substantial damages and awards in such cases, if employers have behaved inappropriately, then in many cases automatic unfair dismissal may well be the verdict.

It may not just be the traditional ‘skivers and trouble-makers’ who appear to be a problem. There are a lot of very worried people at the moment, so be respectful of their concerns, and avoid treating them as a nuisance to be ‘dealt with’.

It is, therefore, imperative that employers, as they start to welcome workers back, do the following:

  • Do a full COVID-19 risk assessment of the workplace, taking into account the Government’s guidance for social distancing and safe working.  This should include consideration of the following (this is not an exhaustive list):
    • The method of travel to work, especially if it involves public transport or shared driving;
    • Site access and egress points – including avoiding congestion peaks, having 2 metre marking on the floor/ground, hand washing stations, dealing with delivery drivers;
    • Hand washing – additional facilities and supplies of hand wash, allowing extra breaks to wash hands;
    • Toilet facilities – restriction of numbers at any one-time, extra signs, enhance cleaning regimes to at least several times a day;
    • Canteen and rest areas – stagger break times, all surfaces regularly cleaned, 2 metre distancing;
    • Meetings – minimise the numbers to an absolute minimum, keep 2 metres apart, have good ventilation (open windows), or if feasible, hold short meetings standing outside;
    • Cleaning – enhanced procedures, especially in communal areas and at shared touch points, from photocopiers and telephones/keyboards through to machinery, tools and equipment, rubbish should be emptied regularly throughout and at the end of each day, all areas used for eating must be thoroughly cleaned at the end of each break and shift, including chairs, tables, doors, vending machines etc; 
  • Remember, that the hierarchy of risk control measures are in the following order:
    • Eliminate – people with symptoms of Coronavirus should not come to work;
    • Reduce – social distancing rules, washing hands before and after using shared equipment, regularly clean common touchpoints such as doors, handles, buttons, tools, equipment, stop/minimise hot desking;
    • Isolate – keep groups of workers that have to work closely together in the same teams, and in as small a number as possible, away from other workers;
    • Control – carefully supervise these new restrictions, keep face to face working to smaller time frames;
    • PPE – providing 2 metre social distancing guidelines are met, Respiratory Personal Equipment (RPE) such as face masks, are unlikely to be required, unless an employee has good reason to wear it, or, you are working in high infection risk areas such as social or health care, reusable PPE should be thoroughly cleaned and not shared;
    • Behaviours – measures necessary to minimise the spread of infection by 2-way communication over the importance of people taking responsibility for their actions and behaviours, and, encouraging people to raise concerns so that they can be addressed;             
  • That they consult fully with the workforce, and explain exactly how they intend to make the workplace safer through additional control measures;
  • Ensure that all workers understand they need to comply with the rules, and to respect others concerns in the current climate;
  • Continue to review and adapt their working practices as employees return to work;
  • Document carefully, and act on workers reasonable concerns about the workplace;

The Health and Safety Executive are already monitoring social distancing at work, even if they are not doing many visits. They are likely to be adopting an ‘intelligence based’ approach, so be careful not to give anxious employees an excuse to give them a call.

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.