Key legal claims
This article sets out the practical steps that employers can take to reduce the scope for work-related claims from employees during the covid-19 pandemic.
Although the government's Living with Covid Strategy has seen significant deregulation around covid-19 measures in the workplace, the steps set out below remain good practice and an effective way of mitigating employment law risks.
Employees can bring various claims connected with the risks of covid-19. These include claims arising from provisions in the Employment Rights Act 1996 (ERA) about serious and imminent danger in the workplace that were rarely used before the pandemic. Some early Employment Tribunal decisions on these provisions have been published, but they do not establish clear principles for deciding when claims will be successful. No employer wants to be a test case; therefore, the below table provides ways that employers can mitigate the various legal risks arising from employees coming to work.
Steps to take as an employer
How it mitigates employment law risk
Comply with the government's workplace specific public health guidance on respiratory infections, including covid-19 and with all relevant Health and Safety Executive guidance
Without this, there is a risk of:
Be clear with employees that they should not attend work if they have tested positive for covid-19 for at least five days
Government public health guidance states that if a person has a positive covid-19 test result, they should try to avoid contact with other people for five days after receiving the positive result, and work from home, if possible. Taking steps to enforce this reduces the scope for:
Assess risks in the workplace(s) via an individual risk assessment and set up control measures
This reduces scope for:
Welcome employees raising health and safety issues, and establish clear channels and processes for dealing with employee complaints about workplace safety / infection control measures (including complaints that other employees are not observing the rules)
Welcoming complaints reduces the risk of employees perceiving themselves to have suffered a detriment for raising them. It is also evidence that the employer has complied with the legal obligations to consult about health and safety measures that they are proposing and implementing.
If employees have confidence in the effectiveness of the employer's processes, they are less likely to escalate the issue (internally or to a relevant regulator such as the Health and Safety Executive or local authority).
Explain how risk are being controlled and communicate the latest official guidance on risks
An employee's right to refuse to work or take other appropriate steps under section 44 of the ERA depends on the reasonableness of their own view about the danger, considering what they know and have been told. Case law on section 44 suggests that what employees understand to be the official advice is highly relevant.
Train employees on health and safety duties, and how to protect themselves and others by upholding good public health practices
Be clear that employees should remove themselves from obvious danger (eg, people behaving irresponsibly)
This helps reduce risk of negligence claims over behaviour of colleagues. Further, this helps employees avert danger without having to leave the workplace under section 44 of the ERA.
Act quickly to rectify legitimate safety concerns raised through the company's reporting channels and inform employees about the outcome of concerns they have raised
Any legitimate concerns need to be addressed to avoid negligence claims. Even if an employee is justified in leaving work over serious health and safety concerns, case law is clear that employees can only refuse to return to work for as long as the danger remains imminent and/or serious.
Communicating how legitimate concerns have been resolved makes it less likely that employees can justify any continuing refusal to work.
While normal whistleblowing channels might not include giving feedback to whistleblowers, the current situation is different, and employees should be kept informed.
Apply health and safety policies and procedures consistently and consider suspending and disciplining employees who break company rules (irrespective of their seniority)
This limits the employer's vicarious liability for the employee's actions and the risk of constructive unfair dismissal claims. Further, this removes imminence of any threat of danger to colleagues, meaning they cannot refuse to return to work because of what that employee was doing, and minimises the risk of tension between employees who disagree over appropriate covid-19 safe practices in the workplace.
Train managers on dealing with whistleblowers
This helps to ensure that all managers react appropriately to employees who raise concerns and understand why it is important to welcome people raising these issues. This will help avoid detrimental treatment of whistleblowers.
In dealing with any concerns about health and safety, consider each employee's circumstances individually
Although increasingly unlikely, whether it is reasonable for an employee to refuse to return to work or take other appropriate steps under section 44 of the ERA will be judged according to their own circumstances and beliefs. Taking a case-by-case approach can reduce exposure to claims. The extent of the duty of care in negligence also partly depends on the gravity of the consequences (eg, the likely seriousness of covid-19 for a clinically vulnerable person).
Allow employees to wear face coverings if they wish, even though this is not required by law or the company's risk assessment
Face coverings mainly reduce the risk of transmitting the virus but also provide some protection for the wearer against becoming infected, so this also supports the employee to avert danger.
Consider providing lateral flow tests to staff
Testing reduces the risk of covid-19 being brought into the workplace so helps diminish risks of claims based on dangers of contracting covid-19 from colleagues. This might be appropriate for some workplace settings or due to the presence of particularly vulnerable staff.
This protects vaccinated individual so helps them avert risk without staying at home. Going as far as mandating the vaccine creates risks of other types of employment claims (eg, discrimination claims, unfair dismissal claims). Collecting vaccination data introduces additional data protection obligations.
Consider special arrangements – either temporary or longer term – for vulnerable employees
Although shielding has ended, claims are most likely to come from this group. Many vulnerable employees will be disabled so this may be a reasonable adjustment in any event.
The special arrangements will depend on the type of workplace and the circumstances.
In certain cases, consider treating employees who live with vulnerable people as if they were vulnerable themselves
Although society is now better protected by vaccination, claims are likely in practice from this group, who might have very real concerns about welfare of family members.
Treating the employee as if vulnerable themselves helps avoid complex arguments about associative discrimination rights and whether rights under section 44 of the ERA could extend to dangers faced by others at home to whom the employer owes no duty of care in addition to the employee themselves.
Provide full company sick pay to employees who have tested positive for covid-19 and cannot work from home
Providing sick pay for employees who test positive but cannot work from home reduces the risk of employees coming in to work when they should stay at home so has potential to reduce risk of claims from colleagues that the workplace is not as covid-19-secure as possible.
Employers should be aware of the following legal claims:
- negligence claims – employers can be liable for breach of their duty of care towards employees. The employer is also vicariously liable for the actions of its employees if these cause harm to others in the workplace – either physical harm by transmitting the virus or mental distress;
- claims under sections 44 and 100 of the ERA – employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for leaving work or refusing to return to work when they have a reasonable belief that they are in serious and imminent danger which they cannot avert (section 44(1)(d) and 100(1)(d)). Employees have similar rights not to be subjected to a detriment or dismissed for taking appropriate steps to protect themselves or other persons from danger (section 44(1)(e) and 100(1)(e));
- whistleblowing claims – employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for making protected disclosures which they reasonably believe to be in the public interest; and
- discrimination claims – employees have the right not to be discriminated against on the basis of a protected characteristic, including (in some cases) a protected characteristic of somebody that they associate with.
For further information on this topic please contact Shalina Crossley or James Davies at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.