HCR Law Events

27 May 2020

Life after lockdown: the reluctant returner (health and safety)

As employers prepare to expand the number of staff working from offices and other establishments in the weeks ahead, there will be some difficult conversations with those employees who may be reluctant, frightened or just plain unwilling to return to an environment in which they don’t feel safe. Here we explore some of the legal questions arising and offer some practical tips to employers as to how to navigate them.

First things first: creating a safe environment

Many HR teams are already getting stuck into the challenging task of trying to adapt workplaces and workplace policies to comply with the revised government guidance ‘Covid-19 Secure’ and the eight associated sector-specific guidance documents that sit under it. What this means in practice is addressed here.

Without fulsome and demonstrable compliance with these guidelines, employers will struggle to show that their request to any member of staff to return to work is an objectively reasonable one. The reasonableness of the instruction will be the essential foundation of any defence, however, if conflict arises with an employee over a request to return.

Employers should not only comply with the guidance but consider how they will prove that they have done so. As well as written risk assessments, notes of consultations with staff representatives and trade union bodies, reports from independent consultants engaged to advise and assist, and so on, HR teams would be well advised to take photographs and video footage of revised workspaces – screens, walkways, signage, hand sanitisers, PPE and so on; essentially building a portfolio of an organisation’s ‘Covid-19 Secure’ project and keeping it well labelled and safe. It may be required as evidence well beyond the usual 4-6 months in employee relations cases.

An employer may have created a workplace that complies with the guidance as far as possible, but employees may, of course, still have legitimate concerns about how they are going to get there safely. Individual, carefully recorded, discussions with staff about this will be essential evidence together with measures to minimise risk such as alterations to hours, changes to office location and, if commercially merited, the provision of transport to work.

Communicating the safety of the environment

The next mainstay of a reasonable instruction will be the provision of information. How will you demonstrate to your workforce that you have made the changes necessary to make them safe if they come to work? Blanket statements like “we have taken all steps necessary to make you safe” may well be met with suspicion. Consider sending photos, make a video showing staff how the new environment/new cleaning arrangements will look and operate, and in particular cases, consider inviting individual staff to come in and view new arrangements before they actually return to work.

It will also be necessary, in order to comply with duties under the Health & Safety at Work Act and associated regulations, to be able to demonstrate how new rules are going to be enforced. Staff may well be sceptical about their colleagues’ likely compliance.

Complaints based on health and safety and/or whistle-blowing

Staff who are not happy to return to work because they consider that the environment is not safe will be most likely to rely on one or more of the following employment rights (whether at the time or further down the line):

  • the right not to be subjected to a detriment or dismissed because of health and safety concerns (section 44(1)(d) and 100(1)(d) Employment Rights Act 1996 (ERA))
  • the right not to be subjected to a detriment or dismissed for making a public interest disclosure i.e. whistle-blowing (section 47B and section 103A ERA)
  • the employer’s obligation to make reasonable adjustments for them as a disabled person (section 21 Equality Act 2010 (EqA))
  • the employer’s duties under the EqA arising because of the employee’s association with a disabled person (e.g. a vulnerable family member)
  • the implied term of mutual trust and confidence in their contract of employment.

A risk assessment before insisting on a return to work from a given employee should involve a consideration of the merits of each of the above.

A detailed explanation of each right and when it is engaged as a matter of law is not for now but the following headlines are worthy of note. (1) – (4) above are all ‘day 1’ rights, so length of service is immaterial.

The specific health and safety provisions in the ERA – (1) above – are as follows:

“in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to

leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work”

or

“in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themself or other persons from the danger.”

The debate in a given case is likely to centre on whether the employee’s belief was reasonable. Proving a “serious and imminent” risk is likely to be less difficult in view of the numerous government statements over the last few weeks about the nature of this disease and its potential impact and the simple fact of the current UK death toll from Covid-19. It is on this issue of reasonableness, that the evidence gathered following the steps outlined above could prove determinative.

In relation to whistle-blowing, reasonable belief will again be a key issue. The prevailing circumstances certainly give rise to the potential for a protected disclosure to be made to an employer and for the public interest test to be satisfied. In a given case whether it does or not will be fact-specific. What HR teams should be alert to, however, is the possibility that observations and representations made by employees during the course of verbal or written discussions about a return to work could later be relied on as protected disclosures to form the basis of a claim.

The disability discrimination provisions of the EqA are also ripe for inclusion in grievances and claims arising in these circumstances. Employees without a known disability when the pandemic hit may have developed anxiety, depression or an adjustment disorder likely to last 12 months or more without treatment through isolation, bereavement, domestic abuse/stress or other triggers that the current circumstances may have given rise to. Managers and HR teams will find such cases particularly challenging to deal with sensitively and appropriately without the benefit of face to face meetings.

Associative disability discrimination remains an area of fertile legal development with many questions yet to be finally determined by the higher courts. An employee living with a vulnerable (disabled) family member may well be advised to rely on this concept if refusing to attend work for fear of infecting them.

Constructive dismissal claims, which may be of less concern to employers than the other uncapped claim risks, are also a possibility.

Conclusions

Wherever possible, the wise employer will navigate these choppy waters with considerable care. Stand-offs with staff should be avoided wherever possible – the outcome of the many legal issues arising is, at this stage, very difficult to predict.

Whilst employers may, quite reasonably, be focussing on business recovery and therefore saving jobs by getting staff back to work, there are many legal avenues open to a reluctant returner who wishes to stay at home. Agreeing unpaid leave will always be preferable in these circumstances to dismissal, if commercially viable.

 

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About the Author
Jenny Jones, Partner (Barrister)

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