In this blog, employment barristers Michael Sprack and Amrit Bachu identify the obligations on employers to ensure the safety of their workers, particularly workers returning to work during Covid-19, and consider practical steps that workers can take.

 

Employers’ obligations and employees’ protections

 

The starting point is that employers have a contractual duty to provide safe working conditions for their employees. The focus of the duty is on the “conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know[1]. An employer “must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve”[2].  Compliance with the duty also means “where there is developing knowledge, [the employer] must keep reasonably abreast of it and not be too slow to apply it[3].  In the rapidly changing landscape of Covid-19, this is important guidance from the courts.

Parliament has placed further duties on employers, the core of which is to ensure the health, safety, and welfare of employees at work[4]. This includes obligations to a provide a safe and healthy working environment; and to provide and maintain safe working systems (including the provision of information and training)[5].  There is a further duty on employers to carry out assessments of the risks faced by employees while at work[6].  All of these duties can be seen, at least in practice, as complementing the above contractual duty on an employer, particularly as an employer disregarding its duties under the health and safety law is unlikely to be considered ‘prudent and reasonable’.

These health and safety obligations mean employees must tell their employer, if applicable through the designated health and safety representative, of any serious and immediate danger to health and safety or any shortcomings in workplace health and safety arrangements[7]. Employees also have the right to leave, or refuse to attend, work where they reasonably believe that they would be subject to serious and imminent danger[8]. The scope of how the danger arises has been held to be without limitation[9], so that it will probably (but not certainly) apply to the commute to and from work during a public health emergency.

To prevent reprisals from employers against employees reporting a concern or refusing to work in unsafe circumstances, the law protects employees from being dismissed or subjected to a detriment (although this is not a straightforward issue which we discuss below)[10].  This is in addition to the more general protection from dismissal or detriment, at least in certain circumstances, for ‘whistleblowers’: employees making a protected disclosure to their employer (or other prescribed person) in the public interest[11].

Although these rights are not expressed to apply to self-employed workers[12], there are two arguments available to aid those who are not legally ‘employees’. Firstly, one has to look beyond the contract because, despite contractual provisions to the contrary, the level of control and economic integration may mean a worker is actually an employee as a matter of law[13].  Secondly, the relevant European legislation extends the protection, at least for refusing to work, to workers and not just employees[14], so an employee can argue that the Act of Parliament must be interpreted so as to include workers who are not ‘employees’[15].

What is the government saying about returning to work during Covid-19?

 

Since the 11th May 2020, some of the restrictions on the lockdown gave been lifted. For those employees who normally work at premises that are required by law to remain closed[16], their position is straightforward.  In addition to being entitled to refuse to attend such premises (and potentially criminally liable if they do attend them), employees in this position who cannot work from home should consider their eligibility for furlough; rights to wages; and (potentially) a right not to be unfairly dismissed[17]. If eligible, offers to be furloughed may well be the best solution.

In other cases, the Government has updated its general guidance for businesses[18] as well as issuing new guidance on 11th May 2020 tailored to eight specific types of workplace[19].  Although the legal force of the guidance is not entirely clear, a court or tribunal will take it into account when considering whether an employer has acted lawfully.

In every case, an employer is required to carry out an ‘appropriate Covid-19 risk assessment’[20].  Further, any concerned employee would benefit from considering the relevant workplace-specific guidance, but a few key points could be summarised as follows:

  • All employees should work from home except where this is impossible.
  • If an employee is required to do work which cannot be done from home, employers ‘should consider’ measures to ensure social distancing, including, e.g., people remaining 2m distance, increased hygiene and handwashing/sanitising, signage, staggered shift/break patterns, screens, avoiding face-to-face working, and one-way systems.
  • Some of these measures are identified in the workplace-specific guidance as ‘steps that will usually be needed’.
  • Additional PPE “beyond what you usually wear, is not beneficial” except in clinical settings’[21](although the more general guidance is silent on this question).
  • Vulnerable persons, and extremely vulnerable persons (advised to be ‘shielded’), should be supported in following the applicable government guidance[22].
  • Anyone developing symptoms, or with a symptomatic fellow householder, should go home and stay home.

The guidance is mostly couched in general terms, and does not really require an employer to do anything in particular in any particular set of circumstances. Many have bemoaned this apparent lack of clarity[23], although it has to be accepted that different workplaces will require different approaches. Secondly, the more pressing question for individuals—“do I have to go back to work?”—actually turns on whether or not each individual employee (or possibly worker) reasonably believes that they would face serious imminent danger if they attended or continued to attend their work premises (see above). The Government’s guidance, and whether an employer has adopted any proposals from it, is only one part of that question.

 

What can employees do if they are concerned about safety?

 

Having to choose between livelihood and personal safety — whilst being given optional (or even unclear) guidance, as well as an apparent lack of information about how Covid-19 behaves and spreads—makes it an invidious decision for workers to have to make. The effectiveness of different protective measures such as masks[24], and even the apparent increased risk of Covid-19 to BAME people or men generally[25]are still being understood.

In these unprecedented times, advice from a union or lawyer (where possible) is particularly important because these issues are so fact sensitive. Individual employees, workers and those advising them may wish to consider the following as possible ways of ensuring that any return to work is safe:

  • Careful consideration of the guidance documents, both the general guidance and the workplace-specific documents, and application of the principles set out there.
  • Workers who reasonably believe that they can work from home (wholly or in part) should communicate this with their employers in writing, along with their reasons.
  • Workers who are, or reasonably believe they may be, at a particular risk (e.g. because of an underlying condition, including those who are ‘shielded’) should make this clear to their employers in writing, and explain their proposal or required adjustments.
  • Workers who cannot work from home, and who would return to work if certain additional measures were put into place, may benefit from communicating with their employers their request and reasons for such measures ; ideally this can be done in such a way as to bring the workers within the protection of the legislation[26].
  • Workers who intend to refuse to attend work because they fear serious imminent danger should seek to bring themselves within the protection of the legislation[27], and be ready to evidence their refusal and its reasonableness (e.g. by clearly offering any alternatives, citing relevant evidence from a reputable source, etc).

Anyone threatened with, or subjected to, dismissal or some other sanction should immediately get advice from their union, an employment solicitor, or an employment advice service, as a very short limitation period applies for any such claims.

Date: 19th May 2020

Please note this blog is not legal advice. It is a platform to share knowledge with employees and workers, as well those who assist them. If you require formal advice on similar problems or specific circumstances, please contact our clerks on 020 7452 8900.

[1] Barber Somerset [2004] IRLR 475, para 65 (endorsing Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783).

[2] ibid.

[3] ibid.

[4] Health and Safety at Work Act 1974 (“HSWA”), s.2.

[5] HSWA, s.2(2).

[6] Managing Health and Safety at Work Regulations 1999 (“MHSW”), reg.3(1)(a).

[7] MHSW, reg.14(2).

[8] Employment Rights Act 1996 (“ERA”), s.44(d) and (e).

[9] Harvest Press v McCaffrey[1999] IRLR 778.

[10] ERA, s.44 and s.100.

[11] ERA, s.43A–43L, 47B and s.103A

[12] ERA, s. 230(1).

[13] Autoclenz Ltd v Belcher & Ors [2011] IRLR 820 and Uber BV v Aslam and others [2019] IRLR 257.

[14] Council Directive 89/391/EEC, art 8(4).

[15] Stadt Wuppertal vBauer(C-569/16).

[16] The Health Protection (Coronavirus, Restrictions) Regulations 2020, reg.4 and part 1 Sch 2.

[17] 1MCB Chambers, ‘What Are My Employment Rights During and After Lockdown?’, 8 April 2020.

[18] BIES and PHE, ‘Guidance for employers and businesses on coronavirus (COVID-19)’, updated 18 May 2020.

[19] BIES, ‘Working Safely During Coronavirus (COVID-19)’, 11 May 2020.

[20] See p. 2 of each of the workplace-specific guidance documents.

[21] BIES, ‘Working Safely During Coronavirus (COVID-19): Other People’s Homes: Chapter 6.1 ‘Face Coverings’’, 11 May 2020.

[22] 1MCB Chambers, ‘Disability discrimination when shielded during Covid-19’, 2 May 2020.

[23] For example, see Full Fact, ‘Why Were There Mixed Messages Over Returning to Work in Lockdown?’, 13 May 2020.

[24] WHO, ‘Wearing a Medical Mask Can Limit the Spread of Certain Respiratory Viral Diseases, including COVID-19’, 26 April 2020 and BIES, ‘Working Safely During Coronavirus (COVID-19)’, ‘Other People’s Homes, 6.1 Face Coverings’, 11 May 2020.

[25] NHS Employers, ‘Risk Assessments for Staff’, 30 April 2020.

[26] ERA, s.44 and s.100 ; ERA, s.43A to 43L, 47B and s.103A.

[27] ERA s.44 and s.100.