Whistleblowing Update

The Easing of the Lockdown – Employer’s Duties to Employees

With the pandemic still raging, the current advice remains for employees to work from home where possible. Where this is not possible some workplaces are beginning to re-open.

Every employer has a duty of care towards its employees.  Arising from this general duty of care the employer will be required to undertake a risk assessment to identify possible safety hazards in the workplace prior to any return to work.  This will include the danger of transmission of Coronavirus from one employee to another.  Action must be taken to reduce the risks.

Employees who are at particular risk such as pregnant women or older workers have even greater protection and employers will need to take these into account also. This is also true of employees who have a special vulnerability to the virus because of age or medical circumstances. There should be no “one size fits all” approach.

 What are the legal protections for safety at work?

Employers have an obligation under the Health & Safety at Work legislation to ensure employees’ health and safety.  This applies to the workplace and when employees are acting in the course of employment.

There is also a “common law” duty to take reasonable care for the health and safety of employees.  Where an employer is found to be negligent in this respect a civil claim for personal injury may be made. Employers are liable if an employee:-

  • suffers harm;
  • such harm is reasonably foreseeable;
  • it is fair, just and reasonable for the employer to be found liable.

An employer may also be liable for the actions of its employees. An example is where a colleague’s negligence exposes a team member to risk of infection by Covid-19. This applies if it is in the course of employment.

There is also a duty of trust and confidence owed from an employer to an employee. This could be if the employer requires the employee to work where the employee is highly likely to be exposed to Covid-19.  Where this duty of trust and confidence has been breached the employee may be entitled to resign and claim that they have been constructively dismissed. The employee could then claim breach of contract and unfair dismissal. However, the circumstance justifying resigning and claiming constructive dismissal have to be quite extreme so employees should get specific advice before this drastic step!

Employees are also protected by law if they:

  • reasonably believe that there is a serious and imminent danger in the workplace or in coming to work;
  • which they could not reasonably be expected to avert.

This would justify an employee in refusing to come to work and be given the right to stay at home on paid leave.  The question is not that the employee is in danger in fact. The key word here is “reasonable” and whether the employee’s decision is reasonable.

There is also a more general “whistle-blowing” protection.  If the employee discloses information which tends to show that the health and safety of any individual has been, is being or is likely to be endangered.  There are special conditions around how an employee is able to make a disclosure of this nature and it must be in the public interest. Employees should seek legal advice if considering making a disclosure in this way to ensure they are in fact legally protected.

If an employee blows the whistle (in the correct way) or refuses to work because of a serious and imminent danger, the employee must not be dismissed or subjected to other kinds of detriment.

 What if the employee refuses to come to work because the commute is dangerous because of exposure to Coronavirus?

The unprecedented nature of the current circumstance means that it is not clear whether a refusal to commute to work would be justified.  However, if an employer does wish the employee to commute on public transport it would be appropriate for them to consult and discuss potential concerns the employee may have.  It is important for the employer to ask themselves the question as to whether it is really necessary to work in the office rather than from home.

It is also important that the employee’s situation as an individual is looked at rather than a blanket policy.  If an employee has an underlying health condition which means that they are “clinically vulnerable” according to Government guidance, they may well be able to benefit from the statutory protection if they refuse to commute because of an imminent danger to health and safety.

 What are the current Government guidelines on working safely in the Coronavirus crisis?

The Government guidelines currently state that employers should:-

  1. Carry out a Covid-19 risk assessment before employees restart work.

The guidelines also say that employers should consult in respect of the risk assessment with the workers or Trade Unions in the workplace and that the results of the risk assessment should be shared with employees. Employers with over 50 employees are expected to show these on their website.

  1. Cleansing, hand washing and hygiene procedures.
  • Employers are advised to:
  • Encourage employees to follow NHS guidance on hand washing.
  • Provide hand sanitiser around the workplace as well as in the washing facilities.
  • Carry out frequent cleansing and disinfecting of objects and surfaces that are touched regularly.
  • Carry out enhanced cleaning for busy areas.
  • Set clear use and cleaning guidance for toilets.
  • Provide hand drying facilities with paper towels or electric dryers.
  1. Help employees to work from home where possible.

Employees should still be working from home where possible and employers should be discussing home working arrangements, ensuring employees have the correct equipment in place and include employees in all necessary communications as well as looking out for their physical wellbeing.

  1. Maintain 2 metre social distancing where possible.

Practical steps employers should consider include:

  • Putting up signs to remind employers and visitors of social distancing guidance.
  • Avoiding sharing work stations.
  • Using floor tape or paint to mark areas to help employees keep the 2 metre distance.
  • Arrange one-way traffic through the workplace if possible.
  • Switching to seeing visitors by appointment only if possible.

5. Where it is not realistic for people to be 2 metres apart the employer will be        expected to consider:

  • whether the activity needs to continue for the business to operate.
  • Keeping the activity as short as possible.
  • Using screens or barriers to separate employees from each other.
  • Using back to back or side to side working wherever possible.
  • Staggering of arrival time and departure time.
  • Reducing the number of people each employee contacts by using fixed teams or partnering.

 Sector Specific Guidelines

As well as general guidance the Government has also provided specific guidance applying to particular types of working environment including:

  • Offices and contact centres.
  • Shops and branches.
  • Factories, plants and warehouses.
  • Labs and research facilities.
  • Construction and other outdoor work.
  • Other people’s homes.
  • Restaurants offering takeaway or delivery.

Conclusion

The process of return to work will throw up difficult situations where employees may feel that their safety is put at risk.  The law provides substantial protection in the area of health and safety but the grey areas arising from the Coronavirus circumstances do mean that some unscrupulous employers will be unreasonably expecting employees to expose themselves to risk.

Jonathan Mansfield: jonathan.mansfield@thomasmansfield.com