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

08 July 2021

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

Employees can make various claims over 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 managing a safe return to work and our FAQs on staffing decisions when re-opening workplaces, 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 Covid-secure workplace safety guidelines

Comply with all relevant HSE guidance

This is the minimum that employers should do. Without this, there is a real 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 MUST not attend work if they are told to self-isolate It is an offence for an employer to knowingly allow staff to come to work when required to self-isolate (although you can require them to work from home).

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 (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

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.


If an employee leaves the workplace early over legitimate safety concerns, maintain pay for that working day/shift – and ideally maintain pay until you are confident that the issues have been rectified

An employee whose pay is maintained has suffered no detriment for the purposes of a whistleblowing claim or claim under section 44 of the ERA.

Ideally, maintain pay until you can be confident it is no longer be reasonable for the employee to believe they face serious/imminent danger on return to work. This will minimise the risk of unlawful deductions from wages and constructive unfair dismissal claims.

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.

Consider suspending and disciplining employees who break your rules (irrespective of their seniority).

Limits the employer’s vicarious liability for the employee’s actions.

Removes imminence of any threat of danger to colleagues, meaning they cannot refuse to return to work because of what that employee was doing.

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

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.

Provide Personal Protective Equipment (PPE) in all cases where advised by your risk assessment and (potentially) upon request in other cases

This will not be required/recommended in all cases (and you need to be careful about depleting supplies of medical-grade PPE). But it may increase the scope for employees to avert danger by taking steps other than leaving the workplace.

Allow employees to wear face coverings even if not required by 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 implementing a testing policy encouraging employees to take lateral flow tests, potentially as a condition of returning to the office.

Testing reduces practical risk of Covid-19 being brought into the workplace so helps diminish risks of claims based on dangers of contracting Covid-19 from colleagues. Introduces additional data protection obligations.

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.

Do not compel anyone, or anyone not fully vaccinated, to return to work – volunteers only

This is the absolute safest option for staffing your workplace, although it will not be practical for many employers.

This approach may help avoid claims under section 44(1)(d) of the ERA, because employees who have not been asked to return cannot be “refusing” to do so. It will also minimise the risk of constructive unfair dismissal claims.

Do not ask vulnerable employees to come to work – volunteers only

In practice, claims are most likely to come from this group. If you need to mandate that some employees come back, not calling on vulnerable people is a sensible way of reducing risk.

Many vulnerable employees will be disabled so this may be a reasonable adjustment in any event.

Treat employees who live with vulnerable people as if they were vulnerable themselves and do not ask to come to work – volunteers only

Again, claims are likely in practice from this group, who will have very real concerns about welfare of family members.

Treating the employee as if vulnerable themselves avoids 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.

Adjust hours as necessary to allow public transport users to avoid peak times

Support alternative methods of getting to work other than by public transport

Reduces the risk of negligence or breach of trust and confidenceof claims from employees who have no option but to travel to work by crowded public transport. Reduces scope for arguments over whether rights under section 44 of the ERA can extend to commuting dangers. Also reduces risks of claims from employees concerned about working next to public transport users.

Ask employees to download the NHS contact tracing app

While not risk-free in itself (because of data protection compliance issues), this reduces the practical risk of Covid-19 being brought into the workplace.

Provide full company sick pay to employees who must self-isolate because they have tested positive for Covid-19 and cannot work from home or who experience side effects of the vaccine.

Ensuring sick pay for side effects of vaccination increases chances of employees taking the vaccine. Providing sick pay for employees who test positive but cannot work from home increases participation in testing and reduces risk of employees coming in to work when they should be self-isolating so has potential to reduce risk of claims from colleagues that the workplace is not fully Covid-secure.

 

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 July 2021. 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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