Government’s return to work plan puts businesses at increased risk of legal claims

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On 10 May, Boris Johnson outlined the Government’s COVID-19 recovery strategy. It’s safe to say that most were not expecting a significant or imminent ease of the lockdown restrictions.

As Michelle Hobbs, Senior Associate, Stevens & Bolton LLP explains, this news surprised employers and employees alike were caught off guard when the Prime Minister announced that people in England who were not able to work from home should return to work.

As such, we have already begun to see businesses’ reopen their doors. But, unfortunately, the cold, hard reality is that restarting the UK economy will come at some risk to the health of those returning to the workplace; and it is employers, not the Government, that will bear the brunt of this risk.

Although, the Government has issued a series of “COVID-19 Secure” guidance documents for employers, employees and the self-employed – aimed at helping employers make workplaces safe during the pandemic – it is ultimately up to businesses themselves to determine what working safely looks like. The guidance makes it clear that employers need to comply with their normal legal obligations regarding health and safety, employment and equalities when reopening their workplaces, but there is little help on offer for those employers who will bear the risk of costly employment related claims, or even action from the Health & Safety Executive (HSE), if they get it wrong.

As we attempt to digest the Government’s plan to restart the economy, it is not possible to cover all of the risks associated with these legal obligations in one article. But there are some key legal issues thrown up by this current strategy that businesses must be aware of.

Defending health & safety related claims

Employers have a legal obligation to protect workers and others from risk to their health and safety. In the midst of a global pandemic, it is extremely difficult for employers to discharge this duty and employers are, therefore, at increased risk of claims from employees and third parties if these obligations are breached.

Employers can however reduce these risks by carrying out a suitable and sufficient COVID-19 risk assessment in consultation with their employees (or appropriate representatives of those employees) to identify risks and then implement measures to minimise them. Although, given that COVID-19 is a new disease with so much still unknown about it, what constitutes a suitable and sufficient COVID-19 risk assessment is far from clear.

Those that do not want to return to work

Even if an employer has carried out a COVID-19 risk assessment and taken all appropriate measures to reduce the identified risks, many employees may still be anxious about returning to work and some may even refuse.

But what can businesses do in this situation? Employees have the right not to attend their place of work if they reasonably believe that they are in serious or imminent danger, as well as the right not to be subjected to a detriment or to be dismissed as a result of having raised a health and safety concern. Whether their belief is reasonable is judged from the view point of the employee, and it is relatively easy for an employee to show that their belief was reasonable.

Thus, if the employee cannot work from home and the perceived danger cannot be eliminated, the employer may have no choice but to let the employee stay at home on full pay. Dismissing an employee in these circumstances might give rise to an automatic unfair dismissal claim whilst withholding or reducing pay is likely to amount to an unlawful detriment for which the employee would be entitled to compensation.

One option might be to keep these employees on furlough leave. However, this may in itself constitute a detriment, particularly if the employee is not in receipt of their full normal salary. Employers also need to bear in mind that the furlough scheme is currently due to end in October this year.

Additionally, the situation is complicated further if the employee’s concerns relate to the fact that they are at higher risk from COVID-19 due to one of the protected characteristics under the Equality Act 2010. If employees are dismissed or otherwise subjected to any unfavourable or detrimental treatment in these cases, employers may be at risk of discrimination claims.

Vulnerable employees

One of the key risks businesses will face in re-opening their workplaces is how to manage employees who are at higher risk from COVID-19. The Government has identified two key groups who fall within this category: those that are “clinically vulnerable” and those that are “clinically extremely vulnerable”. “Clinically vulnerable” employees include those who are aged 70 or over, pregnant women and others with certain underlying health conditions, whilst “clinically extremely vulnerable” employees are those who have been advised to shield.

Whilst it seems logical not to require these employees to come back to work, employers may be at risk of discrimination claims based on disability, age, pregnancy and maternity and sex if they adopt this approach. This is especially the case where these employees are on furlough leave at a reduced rate of pay and want to return to work.

These claims may be easier to defend for those employees who are shielding, as the Government’s guidance strongly advises they are not to work outside the home. The position with “clinically vulnerable” employees is, however, more difficult.

The Guidance clearly envisages that it might be possible for “clinically vulnerable” employees to return to work. It states that if they cannot work from home, they should be offered the safest viable on-site roles that enable them to socially distance. However, if social distancing cannot be achieved, employers should consider whether this involves an “acceptable level of risk”.

Arguably, if the level of risk is not acceptable, employers might be able to successfully defend any discrimination claims arising from a decision not to let the vulnerable employees return to work. The Government has, however, provided no guidance on what constitutes an “acceptable level of risk”. As such, employers will have to accept the risk of liability for discrimination claims if they get that assessment wrong.

A separate issue arises if the level of risk is considered acceptable and vulnerable employees do return to the workplace. Employers will have to ensure that any measures implemented to create a safe working environment, such as one way systems and staggered arrival and departure times, do not place those employees with protected characteristics at a substantial disadvantage. If they do, businesses are under a duty to make reasonable adjustments to any measures and will be at risk of claims if they fail to do so.

There are clearly a number of complex legal issues facing employers attempting to re-open or keep open their workplaces during the COVID-19 pandemic. Unfortunately, these are risks that employers are going to have to manage for a long time as a cost of resurrecting business. The virus will not disappear overnight and employers will have to learn to adapt their businesses so it can operate safely in the “new normal”, whatever that might be.