Following the Government announcements on its return to work strategy, BLM's employment and health and safety experts comment:
Peter James, partner and head of health and safety, London at BLM:
“The government’s guidelines have confirmed the sheer complexity of dealing with COVID-19 in the workplace and should act as a caution to businesses that a return to work must be a considered process. The considerations across industries will vary – it is interesting in construction, for example, that PPE is to be worn in accordance with usual practice but there is no legal requirement for face coverings.
“The message I would relay to all businesses is to read the guidance, assess the risks in your workplace and then plan effective control measures. Once implemented, these need to be managed and monitored to ensure compliance. Businesses should consider whether it is absolutely critical for employees to be in the workplace and should not re start operations until workplaces are COVID secure in accordance with the Government guidelines. We could well see the Health & Safety Executive becoming involved relatively quickly if concerns are raised that workplaces are not COVID secure and workers are being put at risk. Employers should be particularly careful in their handling of employees returning to work, particularly those considered vulnerable and any concerns they may have.”
Julian Cox, partner and head of employment law, London at BLM:
“With a continued emphasis on working from home as a first option, no doubt many employees will argue their role can be performed from home, or that it is not critical to the business as defined by the guidance. They may also express – real or perceived – concerns on health and safety grounds and in yesterday’s daily briefing, the Prime Minister encouraged workers to report any breaches to the local authority and health and safety executive, which would afford whistleblowing protection.
“This is key, and caution is advised at this early stage if considering dismissals for employees who refuse to return on health and safety grounds over concerns that the business is not COVID-19 secure, or related to whistleblowing. These are categorised by employment statute as being automatically unfair, meaning an employee can bring unfair dismissal claims regardless of length of service. It’s somewhat of a bear trap for the unwary employer.
“The guidance also identifies ‘vulnerable’ workers, who employers need to give special consideration to in terms of whether it is appropriate they return to the workplace and if so on what terms. Those identified as having protected characteristics as defined under the Equalities Act 2020 are highlighted as requiring particular consideration to avoid them being discriminated against.”