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Employment Law Services Ltd

Coronavirus and dealing with staff health and safety concerns

20th April 2020
While many businesses have closed during the current health crisis, others have continued to work. Some have extended home-working, others have continued work but scaled back. Many have had to send some staff on “furlough leave” while operating a reduced service, keeping a reduced number of staff at work.

It is perhaps no surprise that some businesses that are continuing with reduced numbers of staff in work have faced reluctance to work by those staff that have not been sent on furlough leave. This reluctance has been expressed as health and safety concerns, and in some cases as resentment that they are having to work as normal for their pay, while others are expecting to get 80% of their pay under the furlough scheme in return for doing no work. If the “lockdown”measures are to be eased and then re-imposed at a later date it will be very likely that businesses will face reluctance, worry, and scepticism from staff over their safety in returning to work.

A lot of jobs involve constant, and significant risks to the health of the staff, and involve dangerous work. The common law duty is to take reasonable steps to protect the staff and ensure their safety, not to protect them from all possible harm. However, the threat posed by a virus that cannot be seen with the naked eye, which can spread between people without them being aware of the fact that they have become infected, and that can survive for short periods on other surfaces, presents an unusual challenge to employers in taking steps to keep their staff safe at work. An invisible threat is almost always more worrying than a visible one.

In view of the threats posed by the coronavirus, employers need to consider their response to the fears and health concerns from staff, and how to respond to those concerns in two particular regards.

Firstly, as employers owe all their staff a duty to maintain their health and safety at work, this will need to considered and addressed in relation to the corona virus and the risk of infection with the virus. In regard to this issue, employers should produce appropriate risk assessments and provide appropriate safety equipment or implement appropriate measures.

The second matter to consider is how to deal with specific employees raising concerns for their safety or reluctance to work or to return to work due to stated health concerns.

The law provides substantial protection to employees in relation to health and safety concerns. This is likely to be a very significant issue for businesses while the virus remains widespread, and there is no vaccine for the coronavirus. Most workplaces are potential environments for the virus, so employers need to understand how best to deal with any health and safety concerns and worries from their staff about the virus.

Protection is provided by the Employment Rights Act 1996 against dismissal and against suffering a “detriment” short of dismissal (egs being subjected to disciplinary action, being demoted, being suspended). Unlike most cases where an employee is dismissed, if a person is dismissed because of a health and safety issue does not depend on the employee having at least two years service. The protection against dismissal for these reasons applies from day one of the employment.

There are a number of essential key points that any employer needs to be aware of within the legislation that protects employees over health and safety dismissals and detriments.

Firstly, it is the employee’s belief in the health and safety danger that is relevant, not the employer’s belief.

Secondly, the concept of “danger” has been interpreted widely. For example, it can include putting a service-user, customer, or colleague in danger as well as the employee him or herself.

Thirdly, the relevant danger must be “imminent” not just a potential danger.

Fourthly, and importantly, the danger in question does not have to be to the individual employee him or herself- it provides legal protection if the danger is actually to someone else.

The section (section 44) dealing with protection from detriment (egs demotion, pay-cut, suspension) applies where the employee left work or proposed to leave work, or refused to return to their place of work in circumstances of danger which the employee reasonably believed to be serious and imminent. In addition, they will also be protected if in circumstances of danger which the employee reasonably believed to be serious and imminent they took, or proposed to take, appropriate steps to protect himself or someone else from the danger. This section makes it clear that in deciding if the steps that the employee took were reasonable, the Tribunal is obliged to consider the circumstances, including, in particular, the knowledge and facilities and advice available to the employee at the time.

Section100 of the Employment Rights Act provides protection against dismissal where the reason or main reason for the dismissal was that the employee left or proposed to leave work in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert. It also applies when the dismissal resulted from the employee taking or proposing to take appropriate steps to protect himself or someone else.

Employees are not obliged to consult with their employer before taking the appropriate action to protect themselves or someone else.

As the Government has stated, and the information is has given to the public both in public broadcasts and over the internet, that the coronavirus poses a serious threat to health, it is clear that any employee that takes action as a consequence of the risks to health over the coronavirus, is likely to establish that there were “circumstances of danger.” The risk of contracting the virus is clearly a danger. It is also likely that they in view of the public information and Government advice, and reported deaths associated with the virus, that the employee will also be able to establish at any Tribunal that the danger was“serious.”

Examiningthe topic of “danger,” the case law indicates that the dangers to be considered are not limited to those that relate to the workplace itself. In the case of HarvestPress Ltd v McCaffrey the Employment Appeals Tribunal accepted the argument that a fellow employee (for example one that is untrained and has carried out their work in a dangerous manner) could through their actions, or inaction, make a workplace unsafe that would otherwise be safe. So a coughing or sneezing colleague could make the workplace unsafe. One point that may provide some comfort for employers however, is the fact that the legislation makes it clear that the protections only apply in relation to an employee that leaves work or refuses to attend work “while the danger persisted.” Therefore,when the danger has passed, the employee can be expected to come back to work.

The area that may pose some uncertainty is whether the employee could establish that the danger was in fact “imminent” in each particular scenario. In light of the consistent advice that is being given not to leave your home unless it is necessary suggests that the danger posed by the virus may always be regarded as “imminent” while the crisis continues. This interpretation would make it challenging for any employer to argue effectively against an employee asserting that the danger was serious and imminent! Unfortunately, there are very few cases that have examined the situation where there are staff employed to do work that places them regularly or unavoidably in places of serious and imminent danger.

As stated earlier, the analysis that the Tribunal has to make is focused on the employee’s belief in the danger. The case law is clear on this matter, stating that the mere fact that an employer disagreed with an employee as to whether there were circumstances of danger, or whether the employer had taken appropriate steps to prevent that danger is irrelevant. The thing that matters is what the employee reasonably believed at the time they acted. Obviously, the lesson for employers here is that they should observe the necessary health and safety laws and regulations, and explain what they have done to address the health and safety requirements to the staff concerned. Employers should explain the steps that they have taken and the reasons for taking those steps. The use of risk assessments (and then acting on those risk assessments) will be crucial in this area, - otherwise it will be much easier for an employee to argue that their view on the risks and their view that those risks were serious and imminent was reasonable.

The nature and extent of the protections given to staff in relation to health and safety concerns, covering action short of dismissal (including any detriment such as suspension, demotion, withholding wages, imposing disciplinary action) as well as dismissal (including constructive dismissal )are such that employers must always act with caution in dealing with any member of staff that has a health and safety concern. There is no cap on the level of compensation that can be awarded in respect of a health and safety related dismissal. Bearing in mind the financial pressures already faced by most businesses as a result of the lockdown and social distancing, this is another factor that requires employers to deal with this issue carefully and cautiously.

Employersshould consider producing risk assessments relating to the coronavirus and the working environment and working practices for staff. They should make sure that the staff are notified of the risk assessment and the measures taken by the employer in response to the assessment. Clearly, the approach taken by any employer should take account of and implement the recommendations from the Government on social distancing, regular hand washing etc. If an employer has used the Government’s Job Retention Scheme, but has decided that it will need to keep some staff in work or bring some back to work after a short period of leave, that employer should take all reasonable steps to assure the staff that it has taken all reasonable measures to protect their health and safety in the workplace. Communication with staff will be vital.

The legal protections for employees are extensive, and the consequences of an employer mishandling the situation are substantial. It is novel to consider the application of this law in a situation where the threats posed by the coronavirus apply to all of us to some extent. It is also going to be difficult to predict how Tribunals and courts will determine when the dangers of the virus are “imminent,” in light of the fact that any person could carry or spread the virus, and it could be found on almost any surface, plus the obvious point that the virus is invisible to us. There are also the questions of exactly what extent can an employee be expected to face the increased degree of risk at work in light of the coronavirus, and how far the employer has to go and steps required to protect their employees from the dangers posed by the coronavirus.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

While many businesses have closed during the current health crisis, others have continued to work. Some have extended home-working, others have continued work but scaled back. Many have had to send some staff on “furlough leave” while operating a reduced service, keeping a reduced number of staff at work.

It is perhaps no surprise that some businesses that are continuing with reduced numbers of staff in work have faced reluctance to work by those staff that have not been sent on furlough leave. This reluctance has been expressed as health and safety concerns, and in some cases as resentment that they are having to work as normal for their pay, while others are expecting to get 80% of their pay under the furlough scheme in return for doing no work. If the “lockdown”measures are to be eased and then re-imposed at a later date it will be very likely that businesses will face reluctance, worry, and scepticism from staff over their safety in returning to work.

A lot of jobs involve constant, and significant risks to the health of the staff, and involve dangerous work. The common law duty is to take reasonable steps to protect the staff and ensure their safety, not to protect them from all possible harm. However, the threat posed by a virus that cannot be seen with the naked eye, which can spread between people without them being aware of the fact that they have become infected, and that can survive for short periods on other surfaces, presents an unusual challenge to employers in taking steps to keep their staff safe at work. An invisible threat is almost always more worrying than a visible one.

In view of the threats posed by the coronavirus, employers need to consider their response to the fears and health concerns from staff, and how to respond to those concerns in two particular regards.

Firstly, as employers owe all their staff a duty to maintain their health and safety at work, this will need to considered and addressed in relation to the corona virus and the risk of infection with the virus. In regard to this issue, employers should produce appropriate risk assessments and provide appropriate safety equipment or implement appropriate measures.

The second matter to consider is how to deal with specific employees raising concerns for their safety or reluctance to work or to return to work due to stated health concerns.

The law provides substantial protection to employees in relation to health and safety concerns. This is likely to be a very significant issue for businesses while the virus remains widespread, and there is no vaccine for the coronavirus. Most workplaces are potential environments for the virus, so employers need to understand how best to deal with any health and safety concerns and worries from their staff about the virus.

Protection is provided by the Employment Rights Act 1996 against dismissal and against suffering a “detriment” short of dismissal (egs being subjected to disciplinary action, being demoted, being suspended). Unlike most cases where an employee is dismissed, if a person is dismissed because of a health and safety issue does not depend on the employee having at least two years service. The protection against dismissal for these reasons applies from day one of the employment.

There are a number of essential key points that any employer needs to be aware of within the legislation that protects employees over health and safety dismissals and detriments.

Firstly, it is the employee’s belief in the health and safety danger that is relevant, not the employer’s belief.

Secondly, the concept of “danger” has been interpreted widely. For example, it can include putting a service-user, customer, or colleague in danger as well as the employee him or herself.

Thirdly, the relevant danger must be “imminent” not just a potential danger.

Fourthly, and importantly, the danger in question does not have to be to the individual employee him or herself- it provides legal protection if the danger is actually to someone else.

The section (section 44) dealing with protection from detriment (egs demotion, pay-cut, suspension) applies where the employee left work or proposed to leave work, or refused to return to their place of work in circumstances of danger which the employee reasonably believed to be serious and imminent. In addition, they will also be protected if in circumstances of danger which the employee reasonably believed to be serious and imminent they took, or proposed to take, appropriate steps to protect himself or someone else from the danger. This section makes it clear that in deciding if the steps that the employee took were reasonable, the Tribunal is obliged to consider the circumstances, including, in particular, the knowledge and facilities and advice available to the employee at the time.

Section100 of the Employment Rights Act provides protection against dismissal where the reason or main reason for the dismissal was that the employee left or proposed to leave work in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert. It also applies when the dismissal resulted from the employee taking or proposing to take appropriate steps to protect himself or someone else.

Employees are not obliged to consult with their employer before taking the appropriate action to protect themselves or someone else.

As the Government has stated, and the information is has given to the public both in public broadcasts and over the internet, that the coronavirus poses a serious threat to health, it is clear that any employee that takes action as a consequence of the risks to health over the coronavirus, is likely to establish that there were “circumstances of danger.” The risk of contracting the virus is clearly a danger. It is also likely that they in view of the public information and Government advice, and reported deaths associated with the virus, that the employee will also be able to establish at any Tribunal that the danger was“serious.”

Examiningthe topic of “danger,” the case law indicates that the dangers to be considered are not limited to those that relate to the workplace itself. In the case of HarvestPress Ltd v McCaffrey the Employment Appeals Tribunal accepted the argument that a fellow employee (for example one that is untrained and has carried out their work in a dangerous manner) could through their actions, or inaction, make a workplace unsafe that would otherwise be safe. So a coughing or sneezing colleague could make the workplace unsafe. One point that may provide some comfort for employers however, is the fact that the legislation makes it clear that the protections only apply in relation to an employee that leaves work or refuses to attend work “while the danger persisted.” Therefore,when the danger has passed, the employee can be expected to come back to work.

The area that may pose some uncertainty is whether the employee could establish that the danger was in fact “imminent” in each particular scenario. In light of the consistent advice that is being given not to leave your home unless it is necessary suggests that the danger posed by the virus may always be regarded as “imminent” while the crisis continues. This interpretation would make it challenging for any employer to argue effectively against an employee asserting that the danger was serious and imminent! Unfortunately, there are very few cases that have examined the situation where there are staff employed to do work that places them regularly or unavoidably in places of serious and imminent danger.

As stated earlier, the analysis that the Tribunal has to make is focused on the employee’s belief in the danger. The case law is clear on this matter, stating that the mere fact that an employer disagreed with an employee as to whether there were circumstances of danger, or whether the employer had taken appropriate steps to prevent that danger is irrelevant. The thing that matters is what the employee reasonably believed at the time they acted. Obviously, the lesson for employers here is that they should observe the necessary health and safety laws and regulations, and explain what they have done to address the health and safety requirements to the staff concerned. Employers should explain the steps that they have taken and the reasons for taking those steps. The use of risk assessments (and then acting on those risk assessments) will be crucial in this area, - otherwise it will be much easier for an employee to argue that their view on the risks and their view that those risks were serious and imminent was reasonable.

The nature and extent of the protections given to staff in relation to health and safety concerns, covering action short of dismissal (including any detriment such as suspension, demotion, withholding wages, imposing disciplinary action) as well as dismissal (including constructive dismissal )are such that employers must always act with caution in dealing with any member of staff that has a health and safety concern. There is no cap on the level of compensation that can be awarded in respect of a health and safety related dismissal. Bearing in mind the financial pressures already faced by most businesses as a result of the lockdown and social distancing, this is another factor that requires employers to deal with this issue carefully and cautiously.

Employersshould consider producing risk assessments relating to the coronavirus and the working environment and working practices for staff. They should make sure that the staff are notified of the risk assessment and the measures taken by the employer in response to the assessment. Clearly, the approach taken by any employer should take account of and implement the recommendations from the Government on social distancing, regular hand washing etc. If an employer has used the Government’s Job Retention Scheme, but has decided that it will need to keep some staff in work or bring some back to work after a short period of leave, that employer should take all reasonable steps to assure the staff that it has taken all reasonable measures to protect their health and safety in the workplace. Communication with staff will be vital.

The legal protections for employees are extensive, and the consequences of an employer mishandling the situation are substantial. It is novel to consider the application of this law in a situation where the threats posed by the coronavirus apply to all of us to some extent. It is also going to be difficult to predict how Tribunals and courts will determine when the dangers of the virus are “imminent,” in light of the fact that any person could carry or spread the virus, and it could be found on almost any surface, plus the obvious point that the virus is invisible to us. There are also the questions of exactly what extent can an employee be expected to face the increased degree of risk at work in light of the coronavirus, and how far the employer has to go and steps required to protect their employees from the dangers posed by the coronavirus.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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