The government’s return to work guidelines bring health and safety concerns to the fore for all types of business and workplace, not just those that may traditionally have been regarded as ‘higher risk’.
Offices, restaurants, hotels, factories, care and clinical settings – all have to conform to the guidance in areas such as social distancing, use of protective equipment and enhanced hygiene practices.
Businesses now have to invest in the planning, preparation and implementation of new working practices within the new work environment. It’s unchartered territory for everyone and there’s no one-size-fits-all blueprint for what it looks like in practice.
With no vaccine imminent and constantly-shifting public health advice, many people remain concerned about the risks of coming out of lockdown and returning to the workplace.
When implementing return to work plans, employers must, by law, take account of these concerns, or risk future legal claims.
Fear of harm
Employees have the right to work in a safe environment.
Section 100 of the Employment Rights Act sets out the actions workers can take if they believe they are in “serious or imminent” danger at work, and it also provides that an employee may be deemed to have been unfairly dismissed if they feel that to continue to work would mean working in a dangerous environment.
Importantly, the threshold under the Act relates to the employee’s belief that the workplace presents serious and imminent danger, and not the employer’s determination of this. If the employee holds this belief, they have the right to refuse to come into the workplace or take action themselves to mitigate the risk.
Employees cannot be forced to go into work. If an employee raises a health and safety concern, as an employer you should take their concerns seriously and respectfully.
This also means employers will need to show the employee was unreasonable in their belief when defending any resulting claims.
It is not just employees considered ‘vulnerable’ under the guidance (such as pregnant workers) who benefit from this protection or may hold such beliefs about workplace safety. Employees may live with vulnerable people, have young families or care for older relatives, or they simply be concerned that until the crisis is downgraded, their workplace presents a risk to their health and safety.
Mishandling employee concerns
Section 100 of the Employment Rights Act should also be considered alongside section 44 of the Employment Rights Act, which states an employee should not be subjected to detriment by any act or failure to act by their employer to comply with health and safety arrangements in the workplace.
If an employee raises a reasonable health and safety concern and takes action to bring a complaint, employers cannot bring disciplinary action as a direct response. The employee should also not be subjected to unfavourable treatment such as being bullied, demoted or overlooked for promotion or unfairly selected for furlough or redundancy.
Mishandling a health and safety complaint can, depending on the circumstances, result in unfair or constructive dismissal claims. Significantly, health and safety cases do not require a minimum employment service and can involve unlimited damages. You will also want to avoid complaints being made to the HSE.
Advice for employers
The harsh reality is that continued inactivity or restrictions on operations are simply not an option if businesses are to survive the crisis. It becomes a matter of understanding and mitigating the legal risks brought by the return to work.
Employees cannot be forced to go into work. If an employee raises a health and safety concern, as an employer you should take their concerns seriously and respectfully. The crisis is impacting people in different ways and employers are expected to be attuned to what their workers’ concerns are and why they feel as they do.
Discuss possible options such as home working, or consider redeployment to a role that allows for homeworking and not having to be physically present in the workplace.
Employers will be required to carry out a coronavirus risk assessment before they can allow employees to return to the workplace. This should be aligned to government guidance and adhere to the hierarchy of risk control measures.
The main reason of carrying out the workplace risk assessment is to safeguard employee health and lessen the risk of infection. Remember each employee is different and may have different health needs to take on board.
Inform employees as to what is happening with the return to work and why, and invite feedback and concerns.
The same applies for homeworking. Certainly in the immediate post-lockdown aftermath, working from home is expected to continue in large part and this must also be accounted for in terms of health and safety through assessments.
It’s also important to remember that the risk assessment will not be a ‘once and done’ exercise. Keep reviewing, keep assessing and keep following the latest guidance from the Government and HSE.
The duty of care and the duty under health and safety laws also extend to the psychological impact of the crisis. Every employee has experienced this differently and employers need to consider situations such as those who are bereaved or have been unwell, financial worries and those also juggling carer duties.
Employee communications and consultations will define the success of your approach. Employees need to be advised of whom they should be notifying in the first instance of their concerns, such as a line manager. Inform employees as to what is happening with the return to work and why, and invite feedback and concerns. Training and support should be provided to managers on how to handle workers’ concerns and complaints.
Remember also to keep documenting and maintain records of communications, risk assessments and complaints to evidence all planning, implementation, review and corrective activities.
A new era of risk
For employers, the current drive and underlying survival instinct to ‘get back to work’ has to be tempered with managing the legal concerns of this new era of risk.
Yet employment claims are expected to surge as employees enforce their rights and bring complaints against employers who, while faced with unprecedented challenges, are still required to meet their employment law obligations.