Life after lockdown: Is it safe to go back to work?

Catherine Urquhart and Gillian Crew consider the legal issues arising out of this week’s changes to the lockdown rules for staff returning to work

On Sunday evening, Boris Johnson urged people to go back to work if they could not work from home. Those in construction, manufacturing and food production are particularly likely to employ staff who cannot work from home. On Monday, eight sector-specific guides were published with advice on how to carry out a Covid-19 risk assessment and other guidance on getting back to work.

While business leaders were cautiously pleased about the easing of the lockdown, the trades unions expressed concerns: how can workers be confident that their workplaces are safe? And what rights do they have if they believe their workplace is not safe?

Employment law disputes are likely to arise in three areas: health and safety; discrimination; and whistleblowing. Here we examine the likely challenges in each area and what those involved can do to avoid disputes.

Health and safety

Under section 2 of the Health and Safety at Work etc Act 1974, all employers are legally obliged to set up a safe system of work and then to see that it is implemented. Under the applicable regulations, all employers are under a statutory duty to carry out a risk assessment and keep that assessment under review (Management of Health and Safety at Work Regulations 1999) and to maintain and clean the workplace and provide suitable and sufficient toilet and washing facilities (Workplace (Health, Safety and Welfare) Regulations 1992). Employers are also under a duty to provide PPE if they cannot adequately control the risks, in particular, these days, by maintaining the two-metre social distancing rule (Personal Protective Equipment at Work Regulations 1992).

Coronavirus means all these duties must be revisited, new risk assessments carried out and new systems introduced, to enable measures such as hand-washing, social distancing, staggered shift patterns and provision of PPE to be introduced as necessary. Employers should not assume that complying with government guidance will give them a complete defence to any employment law claim, although it will help them to show that they have done this.

Employees who do not believe that their workplace is safe are protected by the Employment Rights Act 1996 (“ERA 1996”). Under sections 44 and 100 ERA 1996, employees have the right not to be subjected to a detriment (such as not being paid), or to be dismissed, because in “circumstances of danger” which they “reasonably believed to be serious and imminent and which [they] could not reasonably have been expected to avert”, they left the workplace, or refused to return to it.

This does not offer employees a free rein to simply refuse to turn up to work, vaguely citing the pandemic as the reason, and expect there to be no repercussions. To qualify for the protection of ss44 or 100 ERA 1996, firstly they must establish that there were “circumstances of danger”. It seems likely that an Employment Tribunal will be easily persuaded that a pandemic, which has caused a high death toll and for which there is no vaccine, presents those circumstances.

The key question then is whether the employee “reasonably believed” that that danger was both “serious and imminent”. This requires a close focus on what was happening in the workplace at the time the employee elected not to attend, or to walk out.

It does not matter what the employer thought about the danger: what counts is the employee’s belief, so long as it is objectively reasonable based on their state of knowledge at the time. In Edwards v Secretary of State for Justice [2014] 7 WLUK 909, the claimant prison officers refused to be driven to HMP Dartmoor across a snowy road, which had been closed by the authorities, but some of their colleagues did make the journey. The EAT held that the Employment Tribunal was wrong to have concluded that just because others had made the journey, the claimants did not have a reasonable belief that the danger posed by this journey was serious and imminent.

The state of the claimants’ knowledge – what they had been told about the road conditions – was key. Sections 44(2) and 100(2) explicitly state that the employee’s actions are to be judged by reference to all the circumstances, including their knowledge and the advice available to them at the time.

This case concerned the prison officers’ journey to work, rather than conditions in the workplace itself. But it is not clear that this will allow employees to argue that if their commute to work presents the circumstances of danger, they are justified in not attending work and cannot be penalised for that. In Edwards, the prison authorities had control over the means of transport, whereas most employers do not control the means of transport that staff use to commute to work.

The statutory protection under ss44 and 100 ERA 1996 only lasts as long as the danger is “serious and imminent”, so once the danger has been mitigated or removed, the employee will no longer be protected if they do not attend or return to work.

Although the ERA 1996 only gives this protection to employees, it is arguable that workers (such as agency workers) may also be entitled to it, because the Health and Safety Directive from which the UK law is derived appears to protect a wider class of worker than employees. However, this point is yet to be tested in court, and any argument under the Marleasing principle that the European protection should be extended to England and Wales may run into difficulties once the UK finally leaves Europe on 31 December 2020. Workers do, however, have protection under discrimination and whistleblowing laws, as set out below.

The pandemic presents a potentially wide liability to employers whose staff may understandably be concerned about returning to work. The difficulty some Employment Tribunals may have if these cases are litigated – as seems likely – is that both parties’ actions may appear to have been reasonable. Employees will likely be able to argue that they had the reasonable belief in the serious and imminent danger, and employers are likely to be able to point to a range of measures brought in to assuage the danger.

How the Tribunals will decide these matters is impossible to predict. There is as yet no case law on these issues arising out of the pandemic. Employment Tribunals are backed up with cases and any new claims are unlikely to be heard before 2021. So with swift redress of claims unlikely, there is an incentive for both employers and employees to work together to resolve disputes before they escalate to a claim.

Discrimination

If an individual worker is shielding because they fall within either the extremely clinically vulnerable category under the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (“the 2020 Regulations”) (e.g., people with cancer, transplants, severe respiratory conditions such as COPD or severe asthma), it’s highly likely that they will fall within the statutory definition of a disabled person under section 6 and Schedule 1 of the Equality Act 2010. Accordingly, the duty to make reasonable adjustments arises, such as to facilitate their continued working from home. Remember that the duty to make reasonable adjustments is wide, and might include consideration of transferring a worker into a role where home working is possible.

An insistence that workers in this group return to work, or dismissing them if they will not, would likely amount to discrimination under section 15 of the Equality Act, being unfavourable treatment because of something arising out of a disability – the need to shield and therefore the inability to return to the workplace. Such treatment can of course be justified if the employer can demonstrate it was a proportionate means of achieving a legitimate aim.

Likewise, those in the vulnerable category of the 2020 Regulations (including people with underlying conditions such as chronic respiratory disease or chronic heart disease) are likely to fall within the statutory disability definition. The 2020 Regulations also include persons with diabetes or who are seriously overweight, with a BMI of over 40, and they may also be disabled if the relevant statutory test is met. If so, a requirement that they return work might also be discriminatory.

What of the non-disabled worker who does not want to attend work because they live with someone who has been told to shield? If they have not been furloughed and are told to return to work, and refuse to return due to the risk that poses to the person they are shielding, do they have any protection against detriment or dismissal if they cannot bring a claim under ss44 or 100 ERA 1996? Claims of associative direct disability discrimination under the principle in Coleman v Attridge Law (C303/06) [2008] ICR 1128 would be difficult to run as the person being shielded has the disability, not the worker. Therefore, the reason for the treatment is unlikely to be the disability but the worker’s refusal to return and the worker is likely to be treated the same as another person who refused to return to work. There would also be no duty to make reasonable adjustments such as facilitating working from home, as the worker does not have the disability.

If you are a parent or have caring responsibilities, it will be difficult to attend work before the schools and/or nurseries go back, which is not expected to happen at the same time as some businesses reopen. The Government appears to be relying upon good old British common sense to be used in such circumstances. Sadly, that might be all that workers with caring responsibilities can realistically rely upon.

By contrast, an employee is entitled to take reasonable time off as “dependants leave” (section 57A ERA 1996), but there is no obligation for it to be paid, or guidance as to what is “reasonable”. Further, statutory parental leave under s76 ERA 1996 entitles an employee to take up to 18 weeks’ leave per child, but under the default scheme in the Maternity & Parental Leave etc Regulations 1999 (“MAPL 1999”), an employee cannot take more than four weeks’ leave in respect of any child in any particular year.

So both employees and workers with children are likely to face difficulties, which could result, for example, in claims of indirect sex discrimination by women, given that they remain the significant majority of primary caregivers.

Pregnant employees and workers are already protected against risks to their health and safety, detriments, or dismissal, courtesy of regs 19 and 20 of MAPL 1999 and section 47C ERA 1996. Further, pregnant women in their third trimester are regarded as particularly vulnerable to poor outcomes if they contract Covid-19 under the Public Health Guidance. Employers should therefore give particular care when carrying out risk assessments for pregnant women and consider whether they should require them to continue to travel to the workplace or to work.

Whistleblowing

Employers will of course be well advised to communicate with their workforce in advance of any return to the workplace and seek to agree ways to make the workplace as “Covid-19” secure as possible. But what happens if, when a worker returns to the workplace, they consider that it is not “Covid-19” secure?

If you are not an employee, as set out above, you are unlikely to be able to rely on the health and safety provisions in ss44 or 100 ERA 1996. But employees and workers both have protection under the whistleblowing provisions of the ERA 1996: the right not to be subject to a detriment (s47B) or dismissed (s103A) for making a protected disclosure under s43B.

To re-cap, s43B provides that a disclosure to the employer (and some others: see s43C) will be protected where:

  • There is a disclosure of information rather than a vague allegation. For example, in a post-lockdown life, saying to an employer that there is not enough hand sanitiser in the office, or that X is not complying with social distancing rules because X keeps high-fiving his colleagues, might be protected;
  • The worker needs to reasonably believe that the disclosure is in the public interest. Case law has shown us that this is a pretty low bar, and in post-lockdown life a protected disclosure about a non “Covid-19 secure” workplace or breach of social distancing by an employer is likely to easily pass such a test;
  • The information falls into one of the prescribed categories under section 43B(1). The most relevant are likely to be (b): breach of legal obligation, (d): that the health or safety of any individual is or is likely to be endangered, or (f): that one of the preceding matters has been or is likely to be concealed.

Advice to employers

  • Work in partnership with your employees and their representatives to make the workplace safe. Consult employees on the steps being proposed, and listen to suggestions they may have to improve them
  • To successfully defend a claim under ss44 or 100 ERA 1996, the employer will need to show it carried out a risk assessment, took appropriate precautionary measures, and communicated with staff and unions about those measures – so it is important to keep written records of the steps taken and the underlying rationale for them
  • Allow employees to see the risk assessment – they are entitled to do so under reg 10 of the Management of Health and Safety at Work Regulations 1999
  • It is the employer’s responsibility to provide appropriate PPE, not the employee’s: see reg 4 of the Personal Protective Equipment at Work Regulations 1992
  • Remember that risk assessments are a dynamic process and need to be kept under review. Listening to your employees must be part of that process
  • Remember that your staff will be feeling anxious about post-lockdown life and be under more pressure than normal
  • Consult on reasonable adjustments for disabled employees
  • There is extensive advice from the Government on gov.uk and the Health and Safety executive on www.hse.gov.uk for businesses
  • The sector-specific guidance, published on Monday 11 May, is available here: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

Advice to employees

  • Employees should ask the employer what it has done to keep them safe. If it cannot or will not answer, the workplace is probably unsafe
  • Anyone leaving the workplace because of a health and safety concern runs the risk of losing wages or even dismissal, so they should put in writing any decision to leave, or to refuse to attend work, explaining their reasons, at the time
  • As soon as the danger is mitigated, the employee should return to work to avoid losing wages or even being dismissed without being able to obtain redress
  • Those raising a protected disclosure should also put it in writing to protect their position should the matter go to a Tribunal.

Ely Place Chambers’ employment team is available to provide advice on all areas of employment law, and representation at hearings (whether that is virtually, during lockdown, or in person once the courts and tribunals re-open). For details, contact our clerks on admin@elyplace.com