The Government’s Living with Covid Strategy has significantly deregulated Covid-19 measures in the workplace, but employees can still bring claims connected with its risks.
How can you protect your business?
1 Stay away!
Be clear that employees should not attend work for at least five days if they have tested positive for Covid-19. Government public health guidance states that if a person has a positive Covid-19 test result, they should try to avoid contact with other people for five days after receiving the positive result, and work from home, if possible.
This step will reduce the scope for employees refusing to work, resigning under section 44 or 100 of the Employment Rights Act 1996 (‘ERA’), or blowing the whistle on health and safety risks.
2 Tell us what is wrong
Welcome employees who raise health and safety issues, and establish clear channels and processes for dealing with employee complaints about workplace safety and infection control measures (including complaints that other employees are not observing the rules).
This step will reduce the risk that employees perceive themselves to have suffered a detriment for raising the problem. If employees realise that your processes are effective they are less likely to escalate the issue.
3 Communicate
Explain how you are controlling risk and communicate the latest official guidance. 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. What did they know? What did you tell them?
Ensuring and demonstrating that your employees understand the official advice will reduce the likelihood that they raise such a claim and help you defend the claim if they do.
4 Train
Train your employees on their health and safety duties, and how to protect themselves and others by upholding good public health practices. Be clear that they should remove themselves from obvious danger.
This will reduce the risk of negligence claims over the behaviour of colleagues.
5 Act quickly
Deal with any legitimate concerns immediately by rectifying the issues and telling your employees what you have done, when and why.
Even if an employee is justified in leaving work, case law is clear that they can only refuse to return to work for as long as the danger remains imminent and or serious.
6 Discipline
Apply your health and safety policies and procedures firmly and consistently. Consider suspending and disciplining employees who break your rules even if they are senior.
This will limit your vicarious liability for your employees’ actions and lower the risk that constructive unfair dismissal claims could succeed.
7 Face coverings
Allow your employees to wear face coverings if they wish, even though the law does not require it. Face coverings reduce the risk of transmitting the virus but also provide some protection for the wearer against becoming infected, so this also helps your employees to avert danger.
It will make some of your employees more comfortable.
8 Encourage vaccination
Vaccination protects people so helps them avert risk without staying at home. Mandating the vaccine will increase the risk of discrimination claims. Collecting vaccination data will introduce additional data protection obligations.
Use persuasion not compulsion.
9 Be flexible
Consider special arrangements, either temporary or permanent, for vulnerable employees. Many vulnerable employees will be disabled so this may be a reasonable adjustment in any event. Whether you adjust, how and for how long will be specific to your business, your employee and their circumstances.
10 Pay
Consider whether you should provide full company sick pay to employees who have tested positive for Covid-19 and cannot work from home. You don’t have to do it but providing full sick pay for employees who test positive but cannot work from home reduces the risk that they come in to work when they should stay at home.
It may reduce the risk of claims from colleagues that your workplace is not Covid-19-secure.
