Covid-19: whistle-blowing and health and safety concerns

The pandemic has brought about numerous challenges for employers, which will continue as lock-down measures start to ease. As businesses re-open and staff start to return from furlough leave, employers will need to ensure that they have appropriate health and safety procedures in place having regard to the ever changing government guidance. This will be no easy task. This article considers some of the key employment law and health and safety issues in this area.

Recap on current position

Following government announcements in May 2020, those who cannot work from home should attend their workplace if it is open (which, from 15 June 2020, includes many retailers), and employers should follow the relevant “Covid-19 Secure” guidelines to help keep their workplaces safe. These can be accessed here.

In addition, the government has advised all employers to do the following:

• carry out Covid-19 risk assessments in accordance with the Health and Safety Executive’s (HSE) guidance
• develop cleaning, handwashing and hygiene procedures
• take steps to help people who can work from home
• where possible, maintain a two metre distance between individuals
• where maintaining a two metre distance between individuals is not possible, do all that they can to mitigate the risk of transmission (such as erecting divides between desks).

This guidance does not supersede employers’ normal legal obligations relating to health and safety, employment or equalities, so employers should continue to have regard to these. However, adherence to the guidance will very likely be taken into account when considering whether an employer has complied with their general health and safety obligations.

The guidance also provides that the HSE may take enforcement action against employers who do not take action to comply with Covid-19 measures.

General obligations on employers

Employers have a variety of statutory and common law duties for health and safety, and the steps they need to take will, to a degree, depend on the industry in which they operate. That said, the Health and Safety at Work etc. Act 1974 places a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. Employers with more than five employees are also required to have a written health and safety policy.

In employment law, there is also an implied term (in every employment contract) that employers will take reasonable steps to protect employees’ health and safety (the implied term).

Consulting with staff

Employers are required to consult with their employees about health and safety matters. Such consultation can be with the employees directly or with elected employee representatives. If an employer recognises a trade union, the relevant trade union representatives will need to be consulted with too. The HSE has published guidance on consultation obligations during the pandemic, which is available here.

Protection for employees

By way of context, employees (and, in some cases, other types of workers) have rights not to be dismissed or treated detrimentally where they raise health and safety concerns (such as concerns that their employer is not enforcing social distancing rules). If they are so treated or dismissed, this will give rise to claims in the Employment Tribunal.

Some dismissals following the raising of health and safety concerns will be “automatically unfair”, regardless of how long the employee has been employed. This includes circumstances where employees are dismissed for:

• Raising health and safety concerns through an employer’s health and safety representative, committee or by other reasonable means, where they reasonably believe there are circumstances connected with their work which are harmful or potentially harmful to health and safety.
• Taking or proposing to take steps to protect themselves and others from dangerous circumstances.

Further, employees have protection under whistle-blowing legislation. In summary, if the reason or principal reason for the dismissal is due to an employee making a “protected disclosure” (which can be about health and safety issues and/or criminal/fraudulent matters, such as an employer fraudulently claiming under the Coronavirus Job Retention Scheme), they will be able to bring a “whistle-blowing” claim. Such claim can be more advantageous to an employee as it often attracts greater compensation levels in the Employment Tribunal (compared to an unfair dismissal claim).

Employees could also have separate standalone claims if they are subject to a detriment (such as a pay reduction or lack of promotion opportunity, for example) due to “blowing the whistle” and/or, in certain circumstances, they can assert that their employer has acted in breach of the implied term (for failing to keep them safe) and resign as a result, treating themselves as having been constructively dismissed.

Challenges for employers during the pandemic

Many workers are likely to feel nervous about returning to work and might “speak out” about their concerns, especially where they believe that their employer has not taken sufficient steps to protect their health and safety. This could be informally to their line manager or more formally via an employer’s whistle-blowing hotline.

It is important for employers to deal with any concerns properly and investigate where appropriate. From a practical perspective, hearing concerns and fixing them will show that employers take their processes seriously and generally improves employer-employee relations.

In the current climate, with the number of redundancies on the rise, it is important for employers to get their redundancy processes right and to be able to demonstrate that there was an objective business rationale for eliminating the role. Otherwise, in a landscape where many employees will have concerns about health and safety, employees might seek to assert that the fact they decided to “speak out” was the ‘real’ reason for their dismissal and look to bring a claim for automatic unfair dismissal and/or whistle-blowing. For further information about redundancies during the pandemic, see Making redundancies during the pandemic.

If you require further advice in this area, please contact Joe Beeston, Senior Associate in our Employment team for further information.

Disclaimer

The current global crisis is evolving rapidly, and the rules and guidance for individuals, companies and other entities to manage its implications are similarly fast moving. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.

Covid-19: Employment Law Update

It’s hard to keep up: barely a day goes by without another change to government guidance or policy being made. This article summarises the recent key changes which employers should be aware of.

Making redundancies during the pandemic

It is a sad reality that some employers will need to make redundancies as a result of the pandemic. It is clear that the ‘lock-down’ will only be lifted gradually and that the Coronavirus Job Retention Scheme will not last indefinitely, and the combination of these is forcing some employers to take action to protect their balance sheets. This article provides a useful summary of the key considerations for employers who are contemplating a headcount reduction.