May 20, 2020

Covid-19 update: Managing health and safety concerns

Coronavirus and social care

What protection do staff have?

1. Safe working environment

It is an implied term of employment contracts that you will provide a safe working environment and this duty is also expressly stated in the Health & Safety at Work Act 1974. Failure to provide a safe working environment could give rise to a number of potential claims, including constructive unfair dismissal.

It is essential that you properly assess the risks posed by Covid-19, take steps to mitigate them and review the effectiveness of the steps taken, particularly where there are changes which could impact the safety of the working environment, such as the easing of the public lockdown.

Specific consideration will also need to be given to those staff members who may be at increased risk, such as those in the extremely vulnerable and vulnerable groups and BAME workers.

2. Protection against health and safety detriment or dismissal

Where an employee reasonably believes there to be a serious and imminent danger which they cannot reasonably be expected to avert, they may leave or refuse to attend work. These rights are provided for in sections 44 and 100 of the Employment Rights Act 1996.

Employees are protected against any detriment (such as non-payment) or dismissal for leaving or refusing to attend work in these circumstances. There is no minimum period of service requirement for an employee to pursue a claim and compensation is potentially unlimited.

We have started to see a significant increase in the number of care staff raising these rights with providers, often at the suggestion of ACAS. It is essential that you understand what your legal obligations are and how to practically manage these situations. In particular, you will need to assess whether the employee is entitled to protection, what the pay position will be while you resolve their concerns and how to avoid a protracted dispute.

To help minimise the risk, you should be as transparent as possible with staff about your Covid-19 risk assessments and what steps you have taken to minimise potential risks. Consulting with staff will also help draw out any other concerns they have, so that they can be addressed.

3. Whistleblowing protection

It is important to remember that concerns about health and safety could also be protected disclosures for the purposes of whistleblowing legislation. You need to be able to identify when these concerns are raised and ensure that you have a process for dealing with them appropriately. An effective whistleblowing policy, which your staff have confidence in, will help ensure that concerns are raised internally rather than to external agencies.

Workers are protected from detriment or dismissal because they made a protected disclosure and there is no minimum period of service required to pursue such a claim.

4. Protection from discrimination

Some staff will be at increased risk from Covid-19 due to underlying health conditions, which may amount to a disability for the purposes of the Equality Act 2010. Treating someone unfavourably because of something arising in consequence of their disability (e.g. absence) could be discriminatory unless objectively justified. You may also need to consider whether you have a duty to make reasonable adjustments.

Pregnant employees have specific protection under health and safety legislation. If you cannot provide a safe working environment they may need to be medically suspended on full pay. A failure to properly assess the risks or medically suspend could amount to pregnancy/sex discrimination.

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