As tentative steps are taken to retreat from the current lockdown arrangements, many businesses across the country will be proactively preparing their workplaces to manage the return of their employees. The overriding encouragement to stay at home has been replaced with active encouragement to return to work (where working from home isn’t feasible).
Whilst employers reflect on and implement the updated government guidance to facilitate the return of employees on a wider scale than many employers have seen over recent weeks, concerns will inevitably be raised by employees about their safety.
The implementation of the government guidance on working safely during the coronavirus, together with following the advice issued by the HSE and Public Health England, will be crucial for employers to manage the safety of their operations and the ability for employees to function safely but effectively within their workspace. Ensuring input from trade unions or employee representatives is not only a requirement but crucial in ensuring engagement. But what of employees raising concerns about their journey to work? How does the active encouragement to return to work reconcile itself with the message to avoid public transport if at all possible?
Obviously consideration needs to be given to the options available for employees to travel to work by other means but there will undoubtedly be many instances of employees who simply have no other mode of transport. Steps are advised to be taken to stagger start times to avoid travel at peak times which may reduce some of the concerns expressed. Transport operators will also be taking their own measures to ensure, as far as possible, the safety of the services they provide, for example, by removing seating and limiting access to avoid overcrowding. With these measures in place and in light of the active encouragement from the government to return to work, many employers may be tempted to take a harder line towards those who continue to express reservations.
A cautionary tale can, however, be gleaned from the EAT case of Edwards & Others v The Secretary of State for Justice where the government learnt the hard way that their robust approach was open to challenge. In that case, a group of prison officers refused to travel to work due to adverse weather conditions which resulted in road closures on their route to work. The Secretary of State, their employer, refused to pay them their day’s wage. The employees subsequently sought to maintain that not paying them for that day amounted to a detriment for raising health and safety concerns. Whilst the final determination of the issue was remitted to the tribunal, the EAT did highlight the crucial issues to be considered in such cases. On the facts, the matters to be determined were 1) whether there were circumstances of danger, and 2) whether the employee believed the circumstances of danger were serious and imminent. The latter point required consideration of what the employee actually believed and, if they thought the danger was serious and imminent, whether that was reasonable. The focus, therefore, is the employee’s belief not the employer’s opinion.
It is easy to see how parallel arguments could be raised by employees in the current pandemic who express concerns about returning to work and who face a detriment as a result. Their concerns may revolve around their travel to work but may alternatively relate to the health and safety measures their employer has adopted in the workplace or the lack thereof. The detriment could be non-payment of wages but it encompasses a wide range of steps an employer may take in response to concerns being expressed by employees.
It is also worth bearing in mind that not only are employees protected from being subjected to a detriment, they are also protected from dismissal irrespective of their length of service where they have raised certain health and safety concerns and compensation in these cases is uncapped.
If employees are raising such issues, exploring the basis of their unease and trying to agree a resolution will avoid escalation. Moreover, not only ensuring adherence to the health and safety advice issued to employers but explaining to employees the steps that are being taken and consulting with them about these measures is likely to ensure greater confidence and engagement. However, where issues persist, employers are advised to take advice before taking further steps.