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I can’t have been the only person shouting “Just answer the question!” at the Radio on Monday (11 May) when Dominic Raab was being interviewed about the Prime Ministers’ Sunday night briefing. Two particular points stood out for me.

The first is that with employers in England and Wales being advised differently by their respective governments, there must be a whole raft of employees who live in one jurisdiction and work in another struggling to understand what they are to do and feeling confused.

Such confusion just creates work for business to communicate with their staff and to reassure and that’s before we even consider the confusion for employers with staff on either side of the border.

To recap, the Prime Minister said: “We now need to stress that anyone who can’t work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work. And we want it to be safe for you to get to work.  So you should avoid public transport if at all possible – because we must and will maintain social distancing, and capacity will therefore be limited.”

He has announced ‘new guidance for employers to make workplaces COVID-secure’, but at the same time expected people to be back at work on Monday morning. Actually the UK Government guidance has throughout the crisis been that manufacturers and construction sites should remain working, it’s just that lots of employers felt it was not safe to do so when the numbers being infected were on an upward trajectory and when they were affected by shortages in supplies or a whole list of impacts of the crisis.

Here, in Wales, the messaging this weekend has been more restrictive. Indeed there is a different law in force. On 7 April 2020, the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) Regulations 2020 (SI 2020/399 were introduced requiring ‘all businesses and persons responsible for work which is being carried out on premises to take all reasonable measures to ensure that 2 metres distance is kept between all people on those premises’ and further guidance has been issued to assist employers.

This can only be helpful to employers and employees operating here in Wales in that it sets a clear goal to be aimed for and gives examples of how to operate.

It is worth saying that it does not mean an employer who is unable to restrict working to 2m is unable to operate – it is a more nuanced position.

Areas of consistency

There is some consistency, however between the two nations: if it is reasonably practicable for someone to do their job from home, they should remain working from home.  The language in the Welsh Guidance about work is that gathering in work needs to be ‘essential for work’: i.e. if the work can be done from home then it should be, equally if the work can be done in the workplace by separating people then they should be separated to do so.

In terms of the confused employees: they should consider the law that applies to the place in which they are going to work. Thus English employers operating, say a building site in Wales will need to consider the specific rules here in Wales and whether they can be complied with, over and above the rules they are applying on their sites in England. An employee living in Wales is able to travel for work provided it is essential that they do so, including across the border into England and then it is the English rules that will apply when they get there.

Existing principles of use

The second point, is that I don’t think trade unions are being unhelpful when they are calling for clearer safety guidance for employers and for their expertise in this field to be utilised. However, I would argue that the key principles that govern how to return to work are already there in the Heath and Safety at Work Act from 1974. Just like how we entered into lockdown, with the burden largely falling on employers to feel their way through the crisis, so those employers are going to have to organise their way out of the crisis in the absence  of detailed guidance from government. And this is how it should be.

Employers need to take this responsibility seriously as the Government cannot be expected to set out rules for every individual workplace – we already have a raft of health and safety legislation to guide us – no more is needed.

A critical aspect of returning to work will be the dynamic health and safety risk assessment of every aspect of the employees being back in the workplace, including how those employees will use the building and its environs; everything from travelling around the building to using restrooms and break facilities.

In Wales it will involve working out how employees can be kept 2m apart and English employers might adopt these rules as a sensible precaution. The principles employers should already be using to balance, measure risk and consider ways to mitigate those risks will all apply. Those employers who may have not taken these things seriously in the past or operated in office environments where health and safety has not been a priority are likely to face demand from staff for more transparency about risk assessments and the steps that have been taken.

The best employers will be involving their staff in the process: communicating with their staff at every turn, seeking to understand what their concerns are and working with them to find solutions.

One of the questions Dominic Raab refused to answer was what should an employee do who doesn’t feel safe? The law has not changed in this regard either: any employee who doesn’t feel safe in work should in the first instance discuss this with a manager or any appointed health and safety representative so that the parties can work to resolve the concern. The best employer will be welcoming discussion with staff, working together with them to appreciate what concerns they have and looking to alleviate them, where practicable. Think listening as well as talking.

Employers will need to tread carefully here because what Dominic Raab wasn’t willing to say is that an employee has the right under s100 of the Employment Rights Act 1996, if faced with circumstances of ‘serious imminent danger’ to leave the workplace or refuse to carry out an unsafe task.

If the employer acted unreasonably here they would face fines for a potential automatically unfair dismissal. Equally if the employee is subject to a detriment which could be not being paid or facing disciplinary action – they are likely to have a claim under section 44 for losses suffered as a result of the detriment.

Thus the employer I heard about this week refusing to allow an employee to wear a face mask the employee had paid for, might face a complaint here as the employee is likely to be suffering from heightened anxiety as a result of the refusal. In the case of an employee with an actual anxiety medical condition the employer may also be legally obliged  by the Equality Act 2010 to make reasonable adjustments to remove a substantial disadvantage the person is at.

Staff are likely to become aware of these rights as there will be media coverage of them.

My view is that judges are likely to make employee-friendly decisions so an employee refusing to work in a particular way is likely to have the backing of the law and employers are going to have to spend time and energy communicating with staff and bringing them with them on the journey back to safe working. Even small things that weren’t significant before like the amount of soap in a dispenser has become a key health and safety issue given the guidance regarding washing hands still being a key plank in combatting Covid 19.

Whistle blowers

Workers who ‘blow the whistle’ about health and safety matters also receive protection from detrimental treatment under s47B and dismissal under section 103A of the Employment Rights Act 1996. Compensation is uncapped so employers shouldn’t ignore employees making their concerns known, even if the employees are actually mistaken or have assumed something wrongly. Instead they should be investigating the concern and documenting what steps they are taking.

Those employers who don’t take their duties seriously may find themselves in a different place: if you cannot win the hearts and minds of your staff by explaining how you plan to look after their wellbeing, you may find they choose not to return to the workplace at all. So, for example, the employer I heard about who is continuing to seat people together at a workstation when they could easily be split up, may find that not everyone in the group is content to take the risk being imposed on them. An employee who resigned in these circumstances may well find a judge sympathetic to their position.

When returning to work proves difficult

There are also going to be groups of workers where returning to work is going to be difficult. They may have very real anxiety about commuting or be unable to return until schools resume. They may be shielding someone advised to do so or themselves been advised to refrain from leaving home for medical reasons or fall into a vulnerable group because of their age or pregnancy.

Individualised risk assessments and discussions will have to be made on a case by case basis – one size will not fit all and managers are going to need training in how to be flexible and work within the law.

Lastly, as a return to work is likely to be a return to a wholly different place to the one we left we will need to agree protocols. People will need to know what to expect and have clarity about what measures you are taking and what you will do if their colleagues don’t follow the rules. There is nothing wrong in reminding the staff that the Health and Safety at Work Act also places a responsibility on the individual to help maintain a safe working environment: it is everyone’s responsibility not just the employer’s.

What other resources are there for employers?

The Chartered Institute of Personnel Development, ACAS, Mind and the Society for Occupational Medicine are publishing a toolkit next week.

Anna Denton

Refreshing Law

Anna is a lawyer, trainer and mediator at Employment Law specialists, Refreshing Law.