With the arrival of “Lockdown No.3”, the UK Government has issued guidance requiring people to stay at home other than for a number of very limited exceptions. One such exception is that, if an individual cannot work remotely from home, they can be required to attend the workplace.
This exception applies to designated key workers (not only in the NHS but also in financial services), nursery and childcare staff, people in the construction industry, funeral directors and essential retail workers. Under the new rules, it also applies a wider category of people than we have seen previously—in the sports sector, for example, and film and TV crews amongst others.
Unsurprisingly, many offices and places of work were not designed with two metre social distancing rules and a potentially deadly, global pandemic in mind. Corridors are narrow, desks are packed in tightly, open-plan office spaces are shared by significant numbers of people, and communal areas (not just kitchens and bathrooms, but staircases, lifts, meeting rooms and the like) are not cleaned sufficiently well or regularly enough to eradicate the risk of infection.
The question then arises: can employers force people to go into work if they fall within one of the UK Government’s exempted categories? What can employees do if they do not feel safe (travelling to and from work by public transport, for example, or sitting next to and/or working with colleagues who might possibly have Coronavirus)? Can they refuse to attend the workplace? What obligations are on their employer 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 addition to the above, employees are protected from suffering a detriment or being dismissed in the event they refuse to attend work on certain health and safety grounds. For example, depending upon all the facts, an employee may be protected from suffering detrimental treatment or being dismissed in “circumstances of danger” which they “reasonably believed” were “serious and imminent”, as a result of which they took “appropriate steps” to protect themselves and others.
Whether or not the risk of infection could constitute a “serious and imminent” danger and whether or not a refusal to go into work could amount to “appropriate steps” to protect oneself or others, is a question which will need to be considered on a case by case basis.
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 Bank of England guidance 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 and Francesca Lopez is a Senior Associate in the Employment team at Kingsley Napley LLP in London
Photo by Ehimetalor Akhere Unuabona on Unsplash