Over the last few days the UK government’s response to COVID-19 has been significantly ramped up with employers often left in a state of confusion and concern. Can they remain open? Should they remain open? What are their rights and obligations towards employees? In reality, the UK government can’t answer every single possibility in the workplace with regard to COVID-19 but there is a raft of guidance with regards to rights and liabilities.
Health and Safety at Work Act 1974
This is an act we have mentioned on numerous occasions and one which essentially defines employee and employer obligations with regards to health and safety in the workplace. There is a specific obligation for employers with regard to the physical AND mental well-being of their employees. We are living in a situation that is extremely fluid with many issues to consider as an employer such as the following.
Ensure HR information is up-to-date
Unfortunately, over the next few weeks and months, there will be a number of fatalities in the UK as a consequence of the coronavirus (COVID-19). This is a time when employee record-keeping will probably come under more scrutiny. You should, therefore, ensure that:-
- All employee contact details and emergency contacts are up-to-date
- Issue guidance on how your company is addressing the challenges surrounding COVID-19
- Ensure a continuous flow of information to employees
- Update guidance on sickness, sick pay and working from home where applicable
As the first port of call, any company (no matter what the size) with employees must have all documentation up-to-date and ensure that new processes, guidance, and actions are available in hard form. Word-of-mouth may be the fastest way to communicate with your employees but you still need to ensure everything is on file.
Protecting the workforce
The UK government has ordered the immediate closure of many businesses such as non-essential retail outlets, bars, clubs, outside caterers and areas where there are large social gatherings. There is a degree of confusion with regards to which businesses are able to remain open (often referred to as key businesses) and others that can operate fully from home. It is therefore important for all employers to detail the reasons why their business has closed or remains open and the best way in which to protect the workforce.
- Forward all official government guidance to employees
- Formally advise employees of the actions they must take to protect themselves and colleagues as well as friends and family
- Provide the appropriate equipment such as hand sanitisers and protective equipment (PPE)
- Where there is a degree of danger or risk of infection, advise employees that they have the right to remain at home
- Take a sympathetic approach to those forced into self-isolation
When the COVID-19 issue is more under control and life/business returns to “normal” many expect a raft of personal injury claims with regards to employee/employer disagreements. While thankfully not widespread, there have been reports of businesses exerting subtle pressure on their employees to attend work despite the potential risks. This is something likely to be addressed at a later date but employers placing employees under duress could potentially open themselves up to being sued.
Over the coming weeks, the mental pressure on both employers and employees is likely to increase. This could lead to fallouts in the workplace, flaring of tempers, and both physical and mental health issues. Even though the issues we are facing at the moment have nothing to do with employers they still have a legal obligation to ensure the mental well-being of their employees.
While there will be various restrictions with regards to what employees can and cannot do, especially with cash flow issues more commonplace, possible actions to consider include:-
- Encouraging struggling employees to take holidays where possible
- Regular briefings to keep employees “in the loop”
- Address rumours and counter rumours regarding the financial health of the company
- Ensure employees are fully aware of their new income/funding options
- Make employees aware of outside parties who can offer support and assistance
The likelihood is that the more employers showing a sensitive approach to the mental well-being of their employees, the more chance this will be reciprocated. This should encourage an environment in which everyone is working together. When you strip away the issues, problems, and concerns of all involved, everybody should be working together for each other. Both physical and mental health obviously comes first but all parties would also prefer to secure the long-term future of their employer.
Working from home
As the COVID-19 pandemic continues to sweep across the UK, touching all areas of the globe, there will be a greater emphasis on working from home. The Internet has already made a huge difference to the way in which many companies are operating under the current pressure. So, the government has encouraged all businesses to deploy work from home policies for their employees where possible.
While the vast majority of workplace safety guidelines will remain intact there are specific issues to consider when employees are working for an employer off the premises.
- Working from home should be in a safe and secure environment
- Guidance should be issued with regards to health and safety
- The relevant working and protective equipment should be available from day one
- Standard security procedures should still be in place for remote working employees
- Monitor employee working hours – no pressure for longer hours
- Constantly review individual employee workloads
This is all very straightforward when you sit back and consider the challenges as well as the many benefits of working from home. However, employers have a legal obligation to ensure that all parties are fully aware of their obligations, protections, and are not placed under undue pressure.
The closure of schools up and down the country, with the exception of schooling for children of key workers, will obviously have a significant impact on the wider UK workforce. While many might have expected nurseries to remain open during these challenging times a number have been temporarily closed due to staffing issues.
While the vast majority of parents are able to work around their family requirements, this trend may be significantly challenged in the coming weeks. Issues which employers need to take into consideration include:-
- Statutory unpaid emergency dependent leave
- Time off work, unpaid, to look after a child up to their 18th birthday
- Parents can take up to 18 weeks unpaid leave for each child but this is restricted to 4 weeks per year per child in blocks of 1 week
- More flexible parental leave where disabled children are involved
- The statutory 21-day notice for parental leave may be waived due to the current situation
The rules and regulations regarding parental leave from the workplace have changed dramatically in recent years. While many may take emergency leave as a holiday, thereby receiving their normal monthly salary, others may opt to take extended leave unpaid. There needs to be some give-and-take between employers and employees although focus at the moment is more on employers perhaps being a little more flexible to their employees.
Those looking to pursue personal injury compensation will still need to prove negligence and liability prior to formally lodging court papers. It is worth reminding ourselves that while the majority of personal injury compensation claims revolve around physical injuries, mental injury/distress is treated in exactly the same manner by the courts. The likelihood is that the legal system, and insurance companies, will consider COVID-19 related claims in a different light once the pandemic is under control and life returns to “normal”. These are challenging times to say the least and while traditional protection for employees is still maintained, we have seen the UK government step in to offer a more flexible approach.
Some of the more common personal injury claim issues we are likely to hear of might include:-
- Did employers carry out their legal obligation to ensure the health and well-being of their employees?
- Was sufficient relevant personal protective equipment provided?
- Were employees made aware of additional risks in the workplace and how to mitigate the chances of infection?
- Was sufficient additional training/guidance given during the pandemic?
There is potentially one additional area of concern that will likely be highlighted in the weeks and months ahead. Pressure placed on employees to work in potentially dangerous environments and repercussions for those who refused to do so. Potential issues could likely include:-
- Pressure to work from home in inappropriate/impossible conditions
- Vindictive redundancies for those who took time off for safety reasons
- Career blocks for those who did not “toe the party line” despite legal protection from employment law
- Repercussions for whistleblowers who called out illegal/immoral activities
Recently we have seen some talk of pressure for employees to remain in the workplace and it seems likely that potential repercussions may follow in some industries/businesses. In this instance, it is worth noting that traditional health and safety laws still apply, and, in simple terms, this type of activity is illegal.
Just because we are living in unprecedented times does not mean that workplace practices should be ignored and health and safety protection dismissed. Those seeking personal injury claims would still need to demonstrate that their employer acted negligently although a degree of appreciation for current conditions may be taken into account. Perhaps a more challenging area will be repercussions for those who quite legitimately took time away, for health and safety reasons, feeling the wrath of their employers.
So, as an employer, you need to ensure that your employees are fully aware of the government guidelines and regular updates are conveyed. It is also vital that any changes/introduction of new internal procedures is documented correctly and the relevant parties informed. COVID-19 makes it an extremely challenging time for employers and employees and while many parties in dispute will perhaps consider a more balanced approach, the law is the law, and protections are there for a reason.