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How to mitigate the risk of employment claims about working during Covid-19 – a table

07 April 2022

Our table for employers sets out the practical steps to take in order to reduce the scope for claims from employees arising out of working during the Covid-19 pandemic.

Our table for employers sets out the practical steps to take in order to reduce the scope for claims from employees arising out of working during the Covid-19 pandemic. Although the government’s Living with Covid Strategy has seen significant deregulation around Covid measures in the workplace, the steps set out below remain good practice and an effective way of mitigating employment law risk.

Employees can bring various claims connected with the risks of Covid-19. These include claims arising from provisions in the Employment Rights Act 1996 (ERA) about serious and imminent danger in the workplace that were rarely used before the pandemic. Some early Employment Tribunal decisions on these provisions have been published, but they do not establish clear principles for deciding when claims will be successful. No employer wants to be a test case so, taking a pragmatic approach, we’ve produced a table of the practical steps that employers can consider taking to mitigate the various legal risks arising from employees coming to work. 

For a quick explainer of the claims referred to in this table, see the summary underneath. For more information see our FAQs on workplace policies and decisions for “Living with Covid” or visit the Lewis Silkin Covid-19 hub.

Steps to take as an employer

How it mitigates employment law risk

Comply with the government’s workplace specific public health guidance on respiratory infections, including Covid

Comply with all relevant HSE guidance

Without this, there is a risk of: negligence claims; employees refusing to work, taking other steps or even resigning under section 44 or 100 of the ERA (see quick explainer below); employees using it as a basis for blowing the whistle on health and safety risks; and claims of constructive unfair dismissal.
Be clear with employees that they should not attend work if they have tested positive for Covid for at least 5 days Government public health guidance says if you have a positive Covid test result you should try to avoid contact with other people for 5 days after the day you took your test, and work from home if you can. Taking steps to enforce this reduces the scope for: negligence claims; employees refusing to work, taking other steps or resigning under section 44 or 100 of the ERA; employees seeking to blow the whistle on health and safety risks; and claims of constructive unfair dismissal.

Assess risks in your own workplace(s) via your own individual risk assessment and set up control measures

Reduces scope for: negligence claims; employees refusing to work, taking other steps or resigning under section 44 or 100 of the ERA; employees seeking to blow the whistle on health and safety risks; and claims of constructive unfair dismissal.

Welcome employees raising health and safety issues

Establish clear channels and processes for dealing with employee complaints about workplace safety / infection control measures (including complaints that other employees are not observing your rules)

Welcoming complaints reduces the risk of employees perceiving themselves to have suffered a detriment for raising them. It is also evidence that you have complied with your legal obligations to consult about health and safety measures you are proposing and implementing.

If employees have confidence in the effectiveness of your processes, they are less likely to escalate the issue (internally or to a relevant regulator such as the Health and Safety Executive or local authority).

Explain how you are controlling risks

Communicate the latest official guidance on risks

An employee’s right to refuse to work or take other appropriate steps under section 44 of the ERA depends on the reasonableness of their own view about the danger, considering what they know and have been told. Case law on section 44 suggests that what employees understand to be the official advice is highly relevant.

Train employees on health and safety duties, and how to protect themselves and others by upholding good public health practices

Be clear that employees should remove themselves from obvious danger (e.g. people behaving irresponsibly)

Helps reduce risk of negligence claims over behaviour of colleagues.

Helps employees avert danger without having to leave the workplace under section 44 of the ERA.


Act quickly to rectify legitimate safety concerns raised through your reporting channels

Inform employees about the outcome of concerns they have raised

Any legitimate concerns need to be addressed to avoid negligence claims.

Even if an employee is justified in leaving work over serious health and safety concerns, case law is clear that employees can only refuse to return to work for as long as the danger remains imminent/serious.

Communicating how you have resolved legitimate concerns makes it less likely that employees can justify any continuing refusal to work.

While your normal whistleblowing channels might not include giving feedback to whistleblowers, the current situation is different and employees should be kept informed.

Apply health and safety policies and procedures consistently and consider suspending and disciplining employees who break your rules (irrespective of their seniority)

Limits the employer’s vicarious liability for the employee’s actions and the risk of constructive unfair dismissal claims.

Removes imminence of any threat of danger to colleagues, meaning they cannot refuse to return to work because of what that employee was doing, and minimises the risk of tension between employees who disagree over appropriate Covid safe practices in the workplace.

Train managers on dealing with whistleblowers

Helps to ensure that all managers react appropriately to employees who raise concerns and understand why it is important to welcome people raising these issues. This will help avoid detrimental treatment of whistleblowers.

In dealing with any concerns about health and safety, consider each employee’s circumstances individually

Although increasingly unlikely, whether it is reasonable for an employee to refuse to return to work or take other appropriate steps under section 44 of the ERA will be judged according to their own circumstances and beliefs. You can reduce exposure to claims in practice by taking a case-by-case approach.

The extent of the duty of care in negligence also partly depends on the gravity of the consequences, e.g. the likely seriousness of Covid-19 for a clinically vulnerable person.

Allow employees who wish to wear face coverings even though not required by law or your risk assessment Face coverings mainly reduce the risk of transmitting the virus but also provide some protection for the wearer against becoming infected, so this also supports the employee to avert danger.
Consider providing lateral flow tests to staff

Testing reduces the risk of Covid-19 being brought into the workplace so helps diminish risks of claims based on dangers of contracting Covid-19 from colleagues. This might be appropriate for some workplace settings or due to the presence of particularly vulnerable staff.

Encourage vaccination

Protects vaccinated individual so helps them avert risk without staying at home. Going as far as mandating the vaccine creates risks of other types of employment claims (e.g. discrimination claims, unfair dismissal claims).Collecting vaccination data introduces additional data protection obligations.

Consider special arrangements – either temporary or longer term - for vulnerable employees

Although shielding has ended, claims are most likely to come from this group. Many vulnerable employees will be disabled so this may be a reasonable adjustment in any event.

The special arrangements you make will depend on the type of workplace and the circumstances.

In certain cases, consider treating employees who live with vulnerable people as if they were vulnerable themselves

Although society is now better protected by vaccination, claims are likely in practice from this group, who might have very real concerns about welfare of family members.

Treating the employee as if vulnerable themselves helps avoid complex arguments about associative discrimination rights and whether rights under section 44 of the ERA could extend to dangers faced by others at home to whom the employer owes no duty of care in addition to the employee themselves.

Provide full company sick pay to employees who have tested positive for Covid-19 and cannot work from home

Providing sick pay for employees who test positive but cannot work from home reduces the risk of employees coming in to work when they should stay at home so has potential to reduce risk of claims from colleagues that the workplace is not as Covid-secure as possible.

 

A quick explainer of the key legal claims:

  • Negligence claims. Employers can be liable for breach of their duty of care towards employees. The employer is also vicariously liable for the actions of its employees if these cause harm to others in the workplace – either physical harm by transmitting the virus or mental distress.
  • Claims under sections 44 and 100 of the ERA. Employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for leaving work or refusing to return to work when they have a reasonable belief that they are in serious and imminent danger which they cannot avert (section 44(1)(d) and 100(1)(d)). Employees have similar rights not to be subjected to a detriment or dismissed for taking appropriate steps to protect themselves or other persons from danger (section 44(1)(e) and 100(1)(e)).
  • Whistleblowing claims. Employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for making protected disclosures which they reasonably believe to be in the public interest.
  • Discrimination claims. Employees have the right not to be discriminated against on the basis of a protected characteristic, including (in some cases) a protected characteristic of somebody they associate with.

 

© Lewis Silkin April 2022. This table should not be taken as legal advice and gives general guidance only. Expert advice should be taken on particular circumstances.

 

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