Health and Safety Post-Covid 19
Health and Safety Dismissals
As the lockdown extends, the normality of working life remains seemingly distant. However, the need for employers to prepare for life during and after corona is essential because the pandemic is likely to change working life as we know it. The pandemic has highlighted an employer’s duty to protect the health, safety and welfare of its employees. Homeworking is one obvious feature that will remain for months to come as businesses look to protect staff, but for certain businesses in the FAD sector where homeworking is not possible, health and safety will become an increasingly important and potentially litigious issue. If you were working on a production line or in a kitchen, for example, how would you react if your colleague shows signs of a continuous, dry cough or appears feverish?
Employees have the right to walk out of the workplace (under s.100 of the Employment Rights Act) if they reasonably believe there is a serious and imminent threat to their health and safety. If they do so, they have the right not to suffer any detriment, for example, their pay can’t be deducted because they refuse to attend work. Importantly, the wording of the Act gives employees significant protection as their right to walk out is based on their reasonable belief of a serious threat to their health. It therefore does not have to be an actual threat, i.e. their coughing colleague doesn’t have to have coronavirus.
Employers will be faced with difficult problems since employees can take unilateral action to protect themselves, irrespective of their employer’s policies or procedures. Any dismissal of an employee who exercises their right under the Act – regardless of their length of service – would be automatically unfair. Further, claims can be brought even where there is no dismissal by the employer. Where an employee resigns as a result of the employer’s actions (or inactions) in response to the employee’s health and safety concerns, it could amount to an automatically unfair constructive dismissal claim.
To add salt to the wounds of employers, compensation of claims under s.100 of ERA are uncapped.
What can employers do?
Employers need to take employees’ perceived concerns seriously and be mindful of employees’ rights in the event of perceived imminent danger. Below are some possible measures to implement but, crucially, employees need to be constantly reminded of the successful measures and ongoing efforts of the employer so that their fears and worries about the dangers in the workplace are reduced.
- Respond diligently and proactively to any health and safety concerns of employees
- Implementation of social distancing, hand sanitiser, obligation to wear protective masks
- Provision of screens
- Virus testing for staff if and when available
- Encourage masks to be worn in public
- Relay advice from health and safety or environmental experts about the satisfactory condition of the workplace
- Question and answer forums so staff can share ideas on how to prevent catching the virus outside of the office
If you have any questions on health and safety or employment law generally please contact firstname.lastname@example.org