Employment lawyer Jonathan Mansfield looks at the potential legal problems that could arise as the government encourages the workforce back to the office after lockdown while the pandemic still lingers
It has been reported that Amundi, Schroders, Legal and General Investment Management and Ninety One have staff starting to return to offices. With the UK's unenviable status as the European country worst hit by the coronavirus, it is likely that the return to offices in the financial sector will be slow. Though the steps that being taken are tentative, this process will continue.
As and when staff do return, firms will need to reconsider the workplace set up extensively. Government guidance to employers is regularly updated and includes sector-specific advice. Employers need to have a system in place to keep abreast of government advice, whether with internal or external advisers. The health and safety executive will conduct spot checks and has published its own guidance.
Employers have a duty under the Health and Safety at Work Act 1974 to provide a safe working environment and ensure health, safety and welfare at work as well as a duty of care at common law.
Employers also have an implied contractual duty of trust and confidence to an employee. A response to issues thrown up by the virus must not undermine this duty: constructive dismissal may result.
Firstly, the employer should consider whether a return is necessary, given that government guidance is still to work from home if possible. If it is essential to bring staff back, there is a duty to identify risk and ensure that the workplace is safe enough to do so. This assessment should be recorded in writing and cover the following:
- The situations or activities which could cause transmission of Covid-19
- Those who are at risk including the likelihood of exposure
- Removal/control of the risk identified
Communication with employees affected is essential in the risk assessment process. Businesses should consult with employees about the risks and the plans to manage them and hear their ideas.
Where health and safety representatives are in place, there should be consultation with such representatives. The results should be shared with employees. The government also expects the results to be published on the website where there are more than 50 employees.
The risk assessment will not be limited to the workplace itself but could involve the issues thrown up by commuting. Concerns relating to the commute might be allayed by a later start time to avoid rush hour crowding. The psychological impact of the dramatic changes to employees' working lives is relevant as well as physical safety.
Our experience is that different employees will have a different perspective depending on their personal circumstances. Somebody living centrally in a studio flat may be raring to get out and on a Boris Bike back to Canary Wharf. Another might be concerned about exposure on a long commute with a vulnerable relative at home.
It is strongly recommended to make the process of return gradual. This will allow health and safety steps to be assessed to ensure they are effective.
Consultation is appropriate prior to the return to work and then at a later stage once the plans are tested. Is a staggered start time reducing the proximity of employees throughout the day? Are there pinch points such as lifts or access areas? Both the physical environment and human behaviour will be relevant: are employees in fact respecting social distancing guidelines and using the hand sanitiser points?
Certain employees may be at heightened risk. Where an employee has a disability there is the possible exposure to a claim for indirect discrimination if they are forced to return. There is also a positive duty on the employer to make reasonable adjustments for a person with a disability if they are put at a substantial disadvantage as a result of the return or how the risk is managed. The law also requires specific risk consideration for pregnant women.
There are some important protections in whistleblowing and from detriment sections of the Employment Rights Act 1996 for employees who raise concerns about health and safety. Employers must avoid detrimental treatment of an employee who discloses information based on reasonable belief that the health and safety is endangered.
Where an employee has a reasonable belief that they may be in "serious and imminent danger" if they return and refuse, they must not be subjected to a detriment. It is debateable whether this would cover a refusal to attend the workplace because of a dangerously crowded commute.
The dramatic impact of the virus throws up challenges for the law in how to respond and to employers in negotiating the minefield. One thing we can be sure of is that Covid-19 related litigation will be keeping quite a few lawyers in work.
Jonathan Mansfield, co-founder, partner in the employment department at specialist law firm Thomas Mansfield
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