2 weeks ago
COVID HEALTH AND SAFETY RISK TO EMPLOYERS
As a firm, we are seeing two unforeseen consequences of COVID-19 emerging which are placing a risk to employers which needs to be treated seriously.
The first risk is where disgruntled employees are now being made redundant, or treated in a way that is unsatisfactory, and consequently revealing that they were made to work while on furlough. This update does not concern these cases.
The second issue is arising whereby employees are taking issue with the steps employers are taking to keep them safe at work.
Some employers, besieged by pressure, are not responding well to such employee concerns without realising the full implication. Any concern raised about safety at work is a “Health and Safety” concern.
While we have not had this occur with our own clients, we are hearing of multiple examples of staff being told to go home unpaid if they don’t like what steps the employer has taken. There is a risk that this action is a detriment to employees who could claim that they have been treated less favourably for raising health and safety concerns. There seems to us to be little alternative in this scenario, but it should not be contemplated until a thorough risk assessment with existing measures has been undertaken.
The big issue
Dismissals in these circumstances can bring claims for INTERIM RELIEF. This means that employees, if successful, can get their wages from the date of dismissal to the date of the full hearing of their case. At present, that could be 18 months down the line. These wages are not recoverable if the employee loses the case in the end, and do not go toward making up the statutory cap on damages. It’s a big issue.
The legal test is whether the employee had a reasonable belief of imminent danger. At present, we believe that a tribunal will be likely to find that COVID infection may meet this test.
The way forward
You should have already carried out a comprehensive risk assessment and taken appropriate action as a result of that. Where an employee raises concerns about safety, first of all you must be able to prove that you took them seriously.
Dismissal is not advisable in the first instance.
It is also possible that “not being paid” is a detriment, so sending home with no pay is not risk free. The issue here is that many employers will fear a floodgate for employees who see a reason to stay at home on pay.
Adhere to the following steps
1. Meet the employee immediately and document their concerns
2. Go through each concern and why this concern presents a risk to the employee
3. Consider, and seek to agree with the employee what steps can be taken to reduce that concern
4. Introduce all reasonable steps to reduce risk, and re-apply the question “Does the employee have a “reasonable belief in imminent danger”?
5. If the answer is No, then you should explain this in writing, and offer the employee unpaid leave if they prefer. If the answer is Yes, then you should seek advice based on the specific case. Not paying the employee risks a claim, but continuing to pay them could result in other employees raising concerns and refusing to work.
• Those self-isolating should get a minimum of SSP
• Those shielding should also get such a minimum
• The furlough scheme is available to employers who wish to navigate a way through this situation without financially affecting the employee
• While as lawyers we write articles designed to address the law, a sense of perspective must be kept in focus. None of the above will matter compared to anyone’s life.
If there are questions not answered in this article, please let us know, email email@example.com
The above is a general guide and must not replace specific legal advice aimed to specific circumstances.