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Managing risk of claims by employees when lockdown is relaxed

View profile for Gillian Markland
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Managing risk of claims by employees when lockdown is relaxed

As an employer, you will have been focusing heavily on the financial and operational implications of the rapid lockdown. However, to stay ahead of the curve, you need to start thinking now about the many practical aspects of a potential relaxation in the lockdown regime. Although the scope and timing of any relaxation is currently very uncertain, we have identified that workplace risk assessments will rapidly become an important area of focus.

It is important to understand that there are two aspects of existing employment law that may pose risks for an employer if not managed proactively.

The first aspect is that employees have legal protection against detriment by any act or failure to act by the employer (s.44 of the Employment Rights Act 1996). This means an employer cannot discipline or dock the pay of an employee claiming they needed to remove themselves from what they perceived as a serious and imminent danger.  The second aspect is the right of employees to make a claim for automatic unfair dismissal if they are dismissed because they removed themselves from the workplace in circumstances of danger which they reasonably believed to be serious and imminent (s.100 of the Employment Rights Act 1996).

Whilst these legal rights were created with more conventional workplace health and safety risks in mind, they have application in the current coronavirus pandemic because, potentially, individual employees might perceive what used to be quite ordinary workplace situations, as now presenting an imminent danger of contracting coronavirus. For example, a colleague or visitor to the workplace might be coughing or sweating; an employee may feel they want to take unilateral action by removing themselves from work, and existing employment law may give them protection in these circumstances.

It is important to understand that if an employee is dismissed because they refuse to attend the workplace because they believe they are in ‘imminent’ danger of contracting coronavirus, they may be able to bring a claim for unfair dismissal. Such claims can be brought even if they have not completed two years’ service. If they are successful, there is no cap on the damages that an Employment Tribunal can award in such cases. Furthermore, if the employee resigns because of retaliatory action by the employer (eg reduced pay), then they may have a claim for constructive  dismissal.

All this means that as employers consider the practicalities of bringing all or more staff back into the workplace, they will need to address coronavirus-related health and safety issues in a timely and structured way so as to reduce potential anxiety amongst employees and to demonstrate they have a robust framework in place in the event that a claim, as described above, is brought.

The three key practical steps are:

  • To undertake coronavirus-related risk assessments across the business focusing on how best to mitigate the potential transmission of the virus in the workplace. Anchoring your approach to the guidelines issued by Public Health England is a good starting point, though you will need to monitor how such guidance evolves over time.
  • To explain and discuss with employees the risk assessment approach adopted and to remind them about the appropriate ways to raise concerns they may have around health and safety issues; this will reduce the likelihood of potential claims escalating without the opportunity to address issues at an earlier stage.
  • To ensure that policies, procedures and relevant employee communications are documented and actually reflect working practices ‘on the ground’. This will help you demonstrate that you have adopted a systematic, logical and proportionate approach to risk assessment which can be set against any potentially disproportionate perceptions of actual risk.

Obviously each employer has a different context in terms of job roles, profile of workforce and likely interaction between colleagues and other visitors. So if you want advice, tailored to your situation, on the legal aspects highlighted above, please do get in touch with our specialist employment law team.

Our articles are intended for general information purposes only and are not a substitute for professional advice tailored to your specific circumstances. We are always very happy to discuss any plans, issues or concerns you may have and to clarify how we might be able to help. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.