On 28 April the International Labour Organisation (ILO) marks its annual "World Day for Safety and Health at Work". When the ILO started observing the day, in 2003, it is unlikely that it could have foreseen the events of the last year. The global pandemic has had a massive impact on the workplace as well as life more generally, from the risk of transmission of the virus, to occupational health issues arising from employers taking measures that spread. Against this backdrop, the day has a particular significance this year.

It also seem a perfect opportunity to highlight an upcoming change to employment law relating to health and safety, remind employers of other claims that may arise from health and safety issues and suggest steps employers can take to mitigate the risks of such claims.

Health and Safety Detriment Protection extending to workers

Currently the Employment Rights Act 1996 (Section 44) only protects employees from being subjected to a detriment because (i) they leave or refuse to attend their place of work because of a reasonable belief that they are in serious and imminent danger, or (ii) they take appropriate steps to protect themselves or others from what they reasonably believe to be serious and imminent danger.

From 31 May 2021, new legislation amending the Employment Rights Act will extend the protection under Section 44 to workers as well as employees.

Other protections

Alongside this protection, employers should remember that there are other protections already available to employees (and, where stated, workers) when raising health and safety concerns. These include:

  • Automatically unfair health and safety dismissals - certain dismissals related to the raising of health and safety concerns will be automatically unfair (available to employees only)
  • Automatically unfair whistleblowing dismissals - an employee will be regarded as automatically unfairly dismissed if the reason or principal reason for the dismissal is that they have made a protected disclosure relating to health and safety concerns (available to employees only).
  • Whistleblowing detriment – both employees and workers have the right not to be subjected to any detriment on the ground that they have made a protected disclosure relating to health and safety concerns.
  • Implied duties- employers have an implied duty to take reasonable care of the health and safety of employees. The implied duty exists on top of the duties that arise under tort law and health and safety legislation. Furthermore, employers have an implied duty of trust and confidence. This duty may be breached where an employer treats an employee detrimentally for raising a health and safety concern.

It is clear that there are a number of potential claims that can arise from health and safety related issues in the workplace. Employers will be keen to try to limit the number of workers and employees refusing to enter the workplace on health and safety grounds, and protect themselves against any future issues or potential claims as a result of insufficient health and safety measures in the workplace. With this in mind, what measures can employers take to increase workplace safety and protect the health and wellbeing of employees?

COVID-19 safety guidance

The government’s guidance, "Working Safely During Coronavirus" is helpful and gives practical suggestions and tips to employers on how the workplace can be made as safe as possible. First issued in May 2020, the guidance is equally applicable now as when first published, as more employees are beginning to return to work. The government has produced 14 separate guides for businesses as part of the "Working Safely During Coronavirus" guidance in England covering a range of different industries. There are equivalent guides for Wales and Scotland. We recommend that employers read the most applicable guide for their business to assist them in navigating the issues related with employees returning to work.

The government supplemented the guidance in May 2020 with five key steps in its COVID-19 Secure guidelines (applicable to all businesses) on working safely during the pandemic. Although subsequently withdrawn as a standalone concept, these five steps still form a key part of "Working Safely During Coronavirus" guidance. The steps are:

  1. Carry out a COVID-19 risk assessment - before employees return to working on site, whilst also consulting with any applicable trade unions or their workers. Employers should share the results of the risk assessment with their workforces.
  2. Develop cleaning, handwashing and hygiene procedures.
  3. Help people to work from home - for example, discuss home working arrangements with employees, ensure the right equipment is available for employees, provide support for employees' physical and mental health.
  4. Maintain two metre social distancing within the workplace - employers can do this by putting up signs to remind workers and visitors, use floor tape or paint, and implement a one-way flow of traffic.
  5. Where people cannot be two metres apart, manage the transmission risk - this can be done through screens, masks, staggering arrival and departure times, reducing the amount of contact employees have with each person.

Fully implementing these measures will reduce the risk of the employment claims outlined above and help employees feel more secure, whether they have been at work throughout or are now considering a return to the workplace. As such they should reduce the number of health and safety related complaints.

It is also important that employers listen to employees' concerns and take complaints or grievances about health and safety at work seriously. Employees may have a legitimate health and safety reason for not attending or returning to the workplace. Employers certainly should not prematurely jump to disciplinary action in such circumstances. If you are considering dismissal of an employee where there are health or safety concerns we would recommend you seek legal advice.