While plenty of people in all sectors are now working from home, designated key workers in the financial services industry are still being forced to go to work. Unsurprisingly, some are concerned about the risks that exposes them to, both travelling in by public transport and in some cases sitting next to people in the office who are coughing and possibly infected. There are understandable concerns that employers may be putting commercial interests before the health and safety of their staff.
Key workers are those that come under the exemptions in the UK Government guidance that people should generally stay at home and work from home. The Guidance states that staff in critical sectors including essential financial services provision (i.e. some bankers and some in financial markets infrastructure) fall within the exemption categories. Furthermore a PRA announcement on 20th March stated that "firms are best placed to decide which staff are essential for the provision of financial services”.
The question then arises as to whether employees have the right to challenge their key worker status and what duties their employer has to keep them safe.
The legal answers will depend on the interplay between the following legal principles:
- That every employer:
- has a duty to take reasonable care of the health and safety of their employees. This duty arises both under the common law and under the Health and Safety at Work etc Act 1974); and
- must "provide and monitor... so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by [the employees] of their contractual duties" (the leading case on this is Waltons & Morse v Dorrington ).
- That every employee:
- has the duty to comply with the reasonable and lawful instructions of their employer; and
- must comply with the terms of their contract of employment, many of which contain express terms regarding the employee’s obligations to their employer.
In the present crisis, employers should clearly still be doing what they can to comply with their health and safety obligations but will have to balance these against their need to continue to provide “essential financial services”. They will no doubt have considered carefully whether work can be carried out at home and whether it is actually essential. Note that the whole financial services sector is not considered essential (see Statement by the PRA on which key financial workers are critical to the Covid-19 response). If the work is not really essential then the employer should send staff home and/or consider putting them on furlough leave.
For staff coming into work, employers should, of course, do everything they can to ensure distancing between employees and to enforce rules such that if there are any concerns about a particular employee (for example, coughing), then that employee should be sent home to self-isolate (whether or not that employee may say “it’s only a cold, not Covid-19”).
If employees continue to have concerns that employers are putting commercial interests before the health and safety of staff, we would recommend they raise their concerns immediately with their line manager in the first instance. Hopefully this will lead to the employer putting in place better protections. If not, then employees may need to raise a formal Grievance (or maybe go through the employer’s whistleblowing channels). Most employers will have written Policies setting out their formal processes. Typically formal Grievances must be submitted in writing to HR. Concerned employees might also consider refusing to attend work (although that may open them to accusations of not being considered a team player and not be helpful if redundancies follow). Naturally it should be hoped that such a refusal would not lead to disciplinary or other consequent action but, if it did, the employer would need to be ready to justify how it has properly addressed its obligations in the first instance.
On the flip side, employees may themselves have commercial interests at play. Any refusal to work and personal decision to stay at home, may lead to an outcome whereby the employer accepts the situation but seeks to reduce pay and/or put the employee on furlough leave, resulting in a reduction to the income of the individual. Someone else might even be appointed temporarily to fulfil the essential role.
These are undoubtedly unprecedented times and there are, unfortunately, no clear cut “correct” answers. There are rights and obligations on both sides of the employer/employee equation. Hopefully articles like this will help to shine a spotlight on what these are and encourage best working practice in these exceptionally difficult circumstances.
Nick Ralph is a Partner in the Employment team at Kingsley Napley LLP in London
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