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Return to work considerations for employers: health and safety, duty of care and whistleblowing claims

29 May 2020 #Other

Health and safety obligations

With increased easing of lockdown measures expected from next week, and businesses beginning to re-open, the inevitable employment law implications will arise from returning to work and ensuring that staff are safe.

The Health and Safety at Work Act 1974 sets out the statutory duty on employers to ensure the health, safety and welfare of all employees whilst at work. As well as this, all employers owe a general duty of care towards their staff and to any customer or person who enters the workplace.

Further, employers and employees are under a mutual duty of trust and confidence which underpins all employment relationships. This duty is likely to be breached by employers who do not carry out sufficient health and safety risk assessments for example, leading to staff feeling unsafe on the premises due to lack of distancing measures, handwashing facilities or whatever it may be.

It is important to understand employers’ health and safety obligations as well as employees’ rights to protection. We are in new territory in terms of ensuring employees’ welfare against a global pandemic and because of this there is no guidance from case law yet. For example, the Health and Safety at Work Act only obliges employers to ensure their staff's health and safety whilst at work. But, with Covid-19 and in consideration of the common law duties, do employers obligations now extend beyond the workplace, to include employees’ commutes for example, where an employee reasonably believes that their commute to work could increase their risk of contracting the virus?

As set out in our previous blog, employees’ rights in terms of health and safety should be borne in mind. The Employment Rights Act 1996 gives employees protection from dismissal or detrimental treatment if they refuse to attend work, or if they take appropriate steps to protect themselves, in circumstances of ‘danger’ which the employee reasonably believes is serious and imminent and which they could not be reasonably expected to avert.  

Employers should not be too hasty to penalise employees who refuse to return to work in fear of their safety as to do so could be breach their statutory rights. Again because of the novelty of this situation, there is no case law to guide us yet. However, we predict that tribunals will have to balance the reasonableness of an employee’s refusal to return to work against the extent to which the employer has fulfilled its health and safety obligations and the steps they have taken to ensure that their workplace is safe. However individual circumstances in this pandemic will be factored into each risk assessment making each case unique and challenging.

Whistleblowing

Following on from the above, we expect to see an increase in whistleblowing claims due to the complexities of ensuring health and safety in this pandemic.

A whistle-blower is a worker who reports certain types of wrongdoing to an employer. Whistle-blowers are protected under the law from detrimental treatment as a result of “blowing the whistle” on breaches of H&S or criminal activities.

We have seen examples of this in the media throughout lockdown. The most prominent being NHS staff raising concerns over lacking PPE, the same with retail warehouse workers who have disclosed lacking social distancing measures in packing and distribution centres.

Now, as more professions start to return to work, we predict an increasing number of employees will raise concerns about health and safety measures in the workplace and employers should be careful how these concerns are dealt with.

Employers should be mindful that any dismissal in response to an employee making a protected disclosure, such as a health and safety concern, will be automatically unfair.  Action short of dismissal, such as telling an employee to stay at home on unpaid leave, because they have complained about a company’s failures or breaches will also lead to claims.  Compensation is unlimited and no period of qualifying service is required to bring this claim.

In short, it is a mine field. Whilst there are now significant obligations on employers to ensure that work places are safe for employees to return, this must be balanced against the reasonableness of each employee’s own concern and risk level, which could be based on a multitude of factors such as pre-existing conditions, the necessity to use public transport to get to work, whether people in their household are shielding and so it goes on.  

We have been advising our clients on their health and safety obligations in re-opening their workplaces as well as how to alleviate individual employee concerns. Please get in touch to speak to one of our team if you would like assistance in tackling these issues.

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.

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Georgia Roberts

Georgia Roberts
Solicitor

E: GRoberts@clarkslegal.com
T: 0118 960 4655
M: 07884 188 976