From lockdown to open-up – employee issues

On 23rd June 2020 we were told that social distancing was to be reduced from 2m to 1m+ where possible. This relaxation will have a positive effect on the economy as a whole, however, in the short term SME’s will feel quite aggrieved that spending on 2m social distancing signage and other business measures to accommodate that rule.

For many employers the strategic and operational issues will continue for the foreseeable future, and potentially until a vaccine is found. As the pandemic and government advice evolves, so too will employee issues.

The change in social distancing will also open the door for more people to return to work, and this will have a major impact on employer/employee relationships.

Employer’s duty of care

Employers have an implied duty to take reasonable care of the health and safety of employees. An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable” ( Sect 2(1) Health and Safety at Work Act 1974).  Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, and are obliged to provide a suitable working environment.

Despite risk assessments and putting measures in place, it is possible, and highly likely, that employees will refuse to attend work due to a belief that they will be at risk of contracting Covid-19.  In this situation the employee could be protected under Section 100 of the ERA 1996, which, at sub-section (d), protects employees from dismissal on the grounds of being absent from work due to a reasonable belief that attending work would put them in serious and imminent danger.  “Danger” should be interpreted broadly and could include the risk of contracting Covid-19 from infected colleagues.

The employee does not need to demonstrate that such a danger actually existed. The question is whether they reasonably believed that attending work would put them in danger.

Employers should also be aware of employees who feel that commuting to work poses a danger. In many areas it will be difficult to maintain the required level of social distancing on public transport, necessary to minimise the risk of contracting Covid-19. It is unclear, however, whether an employee who reasonably believes that their commute to work represents such a danger is entitled to the same protection of Section 100 of the ERA 1996.

If there are alternative means of commuting to work, or if the employer allows flexibility to travel at off-peak times, then any danger, may, depending on the circumstances, be reduced.

Vulnerable Groups

“Clinically vulnerable” people have until this point been advised to stay at home as much as possible and take “particular care” to minimise contact outside of their household. We await advice on how employers should this treat this group and the shielded “clinically extremely vulnerable” group.

Employers, of course, have a duty of care to their employees, and to request a vulnerable employee to return to work could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence. The right to object to attending work due to a serious and imminent danger could also be invoked by the employee.

Where an employee from one of the vulnerable groups subsequently contracts Covid-19 due to their employer’s actions or inactions, they will potentially have a claim for personal injury against the employer as well as a discrimination claim.

An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of their employees.  A starting point may be for the employers should seek medical advice to confirm or clarify the potential risks and to see what adjustments, if any, could be made to permit the employee to work.

Previous versions of the Governments Social Distancing Guidance “strongly advised” the clinically vulnerable to work from home. This wording does not appear in the most recent versions prior to 23 June 2020, suggesting a change in emphasis. However an employer should consider the risks carefully before requiring a clinically vulnerable employee to return to the workplace.

Anxiety

People who suffer from severe anxiety will find the pandemic and lifting of restrictions very worrying. Where an employee suffers from severe anxiety, this could amount to a disability under the Equality Act 2010.

An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting Covid-19. Perhaps the employer could offer extra car parking where possible so that the employee can avoid using public transport, arrange for the employee to work during non-peak times, or keep the employee on furlough.

Whatever the nature of the medical condition, it is imperative to obtain medical advice as soon as possible to determine what adjustments, if any, should be made to assist the employee in continuing to work, such as flexitime or home working.

It is conceivable that a workplace in which there is perceived to be a high risk of contracting COVID-19 and which has not taken appropriate steps to mitigate that danger, could fall within that category. Much would depend upon the current status of the pandemic (the serious and imminent danger test may be less likely to be met where the level of cases has dropped significantly). It will also depend on the steps that the employer has taken to reduce the risk, and how visible and well-communicated those strategies are. The employer is not, from this perspective, required to eliminate the risk: the question is whether the employee has a reasonable belief in a serious and imminent danger. The employee’s own health may also be relevant. An employee with a suppressed immune system may be put in serious and imminent danger in circumstances where an employee without their health condition is not.

This underlines the importance of effective communication with employees in terms of the measures taken by the employer to minimise the risk. Employers should carefully consider an employee’s concerns on health grounds or justification for failing to attend work in this context before taking any action.

Where there is more than one case of Covid-19 associated with a workplace, employers in England should contact their local health protection team to report the suspected outbreak.  Employees have a right not to be dismissed or treated detrimentally for raising health and safety concerns.

Self-isolation and annual leave

Where an employee is subject to self-isolation because they have Covid-19, or symptoms of it, then they are considered “ill” and will be treated in the same way as any other worker who is absent due to ill health.  Furthermore, based on case law, it can be assumed that an employee who is self-isolating (but not suffering from Covid-19) should be entitled to reschedule their annual leave, if they wish to do so. Whether or not holiday entitlement can be carried over to the next year because of Covid-19 is beyond the scope of this note.

Self-isolating and working?

Self-isolation where either an employee or a member of their household has symptoms of Covid-19 is deemed ‘incapacity’ for the purposes of SSP. However, this only applies where, by reason of that self-isolation, the employee is unable to work. If it is feasible, then an employee could work from home and continue to receive full pay if they are well enough.

For further advice and support SME Comply can help. We offer subscription access to legal documents, including the relevant policies for data processing, as well as pay-as-you-go and fixed fee services that cover all of your employment law needs. Available on 01386 291011 or email info@smecomply.co.uk.

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