All employers owe a legal duty to their employees to manage the health and safety of their employees. The Health and Safety at Work Act 1974 imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety, and welfare at work of all of their employees.
It sets out the basic duties including the requirement to provide:
- A safe system of work;
- A safe place of work without risks to health;
- Safe equipment, plant, and machinery;
A basic step to identifying what steps need to be taken to mitigate risk is to carry out a health and safety risk assessment. The COVID 19 pandemic has brought this into sharp focus and in particular the risk of claims under section 100 of the Employment Rights Act 1996.
The section provides protection for employees that refuse to engage in a working practice because the practice itself poses an imminent and serious danger to the workforce, for example by being asked to work a metal pressing machine without safety guards, screens or cutouts.
Priority actions for employers post lockdown
All employers should make sure they are familiar with the government’s working safety guidelines that are specific to their work setting.
In addition, employers should do the following:
- Complete a COVID 19 risk assessment which should be shared with staff and updated regularly. If the employer has more than 50 workers, the risk assessment must be published on their website. Employers need to demonstrate that they have properly assessed the risks and taken appropriate measures to mitigate this
- Provide adequate ventilation through doors, windows and vents and use of mechanical ventilation using fans and ducts. Use of outdoor space should be encouraged where practical
- Clean more often, particularly surfaces that people touch regularly, and advise customers and workers to wash their hands/use hand sanitiser frequently. Cleaning should take place between shifts or use of areas.
- Provide more waste facilities
- Provide PPE if necessary and encourage use of face coverings. Unless a workplace poses a high risk of COVID 19 transmission, the risk assessment should reflect that the role of PPE in providing additional protection is extremely limited. If a risk assessment shows that PPE is required, this must be provided free of charge and must fit properly.
- Turn away people with COVID19 symptoms
- Enable people to check in at your venue to support NHS Test and Trace. Some employers may want to introduce their own internal tracing app and there may be strong arguments to protect health and safety and to minimise sickness absence. However, an employer will have to show a lawful basis for doing this and be able to demonstrate compliance with data protection legislation.
The employer would be processing health data and so the app would have to be secure, and it may be difficult for an employer to require its employees to use an app of this nature out of working hours.
- Communicate and train individuals on safety measures
Automatically unfair health and safety dismissals
Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals. There is no qualifying service requirement and compensation is uncapped.
S100 of the Employment Rights Act protects employees by providing that a dismissal is automatically unfair where the reason (or principal reason) for the dismissal is one of the following:
- Dismissal for designated health and safety activities
- Dismissal of health and safety representatives
- Dismissal for raising health and safety concerns through reasonable means
- Dismissal for leaving or staying away from a dangerous workplace
- Dismissal for taking action to prevent danger
The impact of the pandemic has resulted in many employees feeling highly anxious about returning to work. We acted for an employer in the case of Rodgers v Leeds Laser Cutting where Mr Rodgers sought to argue he was dismissed because he had messaged his manager to say that he would be staying away from work until lockdown had eased as he was worried about his children catching COVID 19.
Mr Rodgers was dismissed and claimed automatic unfair dismissal. His workplace was a large factory which only had about five employees in at the same time and the company had followed government guidelines to minimise the risk of exposure to COVID 19. The evidence from Mr Rodgers was vague and he also confirmed that at the height of the pandemic he had driven a friend to hospital and he also spent time working in a pub.
Mr Rodgers could not demonstrate a reasonable belief in a serious and imminent danger at his workplace and his claim failed. The case did turn on its particular facts and a separate case brought under the same provision has been successful (in the case of Gibson v Lothian Leisure, the dismissal of Mr Gibson for taking steps to protect his father where he believed there was a serious and imminent risk of danger was held to be unfair).
Of particular note however, is that our submission that s100 of the Employment Rights Act 1996 could not apply to the pandemic was not accepted. All employers, therefore, need to be aware of the risk of these types of claims and to ensure appropriate measures are taken to reduce the risk of catching COVID 19.