Employers are making difficult choices at this time in situations which have never affected their workplaces before. As fresh guidance is issued and new headlines emerge, the next legal queries evolve. This blog by Schona Jolly QC is the first of a series which examines the interplay between the workplace and the coronavirus. It explores the employment law implications for employees and employers in critical sectors, such as public health and social care, when individuals are needed in their workplaces, but are terrified of the dangers to which they might be exposed during the COVID-19 pandemic.
Two days after the government announced a soft lockdown in response to the worsening COVID-19 crisis, people working within the critical sectors, such as public health and social care, are facing difficult, practical issues on the ground which the current state of employment law cannot resolve satisfactorily. The rules and norms of our employment law are not set up to deal with this pandemic, but employees and employers alike need urgent advice.
One question which employment lawyers are being inundated with arises from the considerable confusion around who must and who may stay away from the workplace. In particular, the degree of challenge for key workers and their employers across critical sectors such as public health, is not to be understated. The growing need for doctors, nurses and the wide variety of support staff highlights the difficulty posed by the crisis: Britain needs its medical services at full capacity, but what happens when employees across the spectrum of services lack confidence in their employer’s ability to protect them from the virus, or from becoming carriers of the virus to those with whom they live? Amidst the global panic, it is hardly surprising that many people required to go out to work are reasonably fearful and confused, both in respect of coronavirus itself as well as the rapidly changing, but still limited, government guidance. This is not to underestimate the scale of the task before government, but to highlight the practical difficulties which clients are realising on the ground. This article concentrates particularly on the difficulties posed in essential services across critical sectors, presupposing both a bona fide employee, who is not self-isolating, and a well-intentioned employer.
Health and safety of employees has suddenly become a widespread and complex problem. Evidently, many employees who would otherwise be required to attend critical work are absent through self-isolation or illness. The position for employees who display symptoms or who live with someone with symptoms of coronavirus is dealt with through the new Statutory Sick Pay provisions which permit flexibility and immediate coverage, so that SSP can be paid from day 1, rather than day 4, of any absence from work relating to self-isolation.
The position for employees who are otherwise fit and safe to attend their workplace is far more difficult. Concerns about health and safety may relate both to the journey to work, which for those who cannot avoid public transport, is fraught with danger, and of the workplace itself. For those exposed to patients or other staff who have or are likely to have been exposed to coronavirus, the threat is real and of serious concern. Yet, critical services across a spectrum – including GP and community clinics, social services, schools and hospitals, to name but a few – would grind to a halt if those critical employees stopped attending work. The consequences of non-availability of essential staff, be they telephonists, cleaners or salaried GPs, damages the employer’s (and government’s) ability to respond to the national crisis, and to that of their local communities in need. But what happens when an employee who is not self-isolating or absent due to ill-health and who is fearful for their health or becoming a carrier for the virus, refuses to attend their place of work?
The latest government Guidance for Employers and Business (23 March 2020) states “if you cannot work from home then you can still travel to work, provided you are well and neither you nor any of your household are self-isolating.”
“Employers who have people in their offices or onsite should ensure that employees are able to follow Public Health England guidelines including, where possible, maintaining a 2 metre distance from others, and washing their hands with soap and water often for at least 20 seconds (or using hand sanitiser gel if soap and water is not available).”
Public Health England guidance (dated 24 March 2020) states:
“If a member of staff has helped someone who was taken unwell with a new, continuous cough or a high temperature, they do not need to go home unless they develop symptoms themselves. They should wash their hands thoroughly for 20 seconds after any contact with someone who is unwell with symptoms consistent with coronavirus infection.
It is not necessary to close the business or workplace or send any staff home, unless government policy changes.”
Even though the guidance appears to be clear, should that be enough to allay concerns about safety of the workplace? Is it reasonable for the employee still to feel for their safety? Employees may feel concerned that the speed at which the guidance has changed may nevertheless put them at risk. For example, whereas until very recently, self-isolation was being recommended if you had come into such contact with someone who had coronavirus, self-isolation now is only necessary if either you or someone you live with shows symptoms of coronavirus. So just last week, if employees had come into contact with anyone else, such as a patient or colleague who had tested positive or had symptoms, they would have been required to self-isolate, whereas that is no longer the official advice. They are therefore required to attend work, but if they know they will be exposed to a patient, or fear exposure notwithstanding the deep cleaning guidance, for example, can they simply refuse? Similarly, for an employee who cannot avoid crowded public transport to get to work, they may worry that they are risking their own health and that of their colleagues, or patients, by coming to work at all in that manner.
The urgent measures taken by government through the emergency furlough system, whilst hugely necessary and welcome, do not seem able to fill the obvious consequences of these type of scenarios. The Employment Rights Act 1996, as amended (“ERA”), is not equipped for the scale of the crisis at hand. Whilst provision is made for employees to claim that they have been unlawfully subjected to a detriment on health and safety grounds, or for automatic unfair dismissal, the provisions remain unclear and untested in these circumstances, resulting in a lack of certainty on both sides.
By s.44(1)(d) and s.100(1)(d) ERA, employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act by their employer and the right not to be dismissed on the ground that “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. Similarly, s.44(1)(e) and s.100(1)(e) provide some protection for employees where, “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
Each of these sets of provisions requires a ‘”reasonable belief” and a danger which is “serious and imminent”. No doubt in due course, these concepts will be litigated with respect to their COVID-19 interpretation. Current case law suggests these concepts will be broadly interpreted. In Harvest Press v McCAffrey  IRLR 778, the EAT agreed with the employment tribunal who considered that the word ‘danger’ was used without limitation in s.100(1)(d) and that Parliament was likely to have intended those words to cover any danger however originating. By contrast, in Akintola v Capita Symonds Ltd  EWCA 405, the Court of Appeal found that it had been open to an employment tribunal to find that the Appellant, who was a senior structural engineer and who had been instructed to provide structural advice on a tunnel at Marble Arch tube station, did not have a reasonable belief that he was in circumstances of serious and imminent danger when he had been expected to enter a tunnel through a manhole. On the facts, the tribunal had found that he had been unable to prove that there was a serious or imminent danger, bearing in mind the existence of a method statement and that the owner council had sent in a specialist team to undertake all the necessary monitoring before anybody else had been allowed to enter the tunnel.
It does not take a leap of imagination to consider that the current circumstances may well meet both the reasonable belief threshold of serious and imminent danger, at least in respect of the workplace. But is that true where the employer is following and complying Public Health England Guidelines on safety during the pandemic? Is that fear of imminent and serious danger reasonable in circumstances where all government guidance, including on social distancing, is being followed? This will include not only the provision of appropriate Personal Protective Equipment (assuming they have done this – which in the current circumstances is unclear), but also through the maintenance and pursuit of appropriate cleaning methods. Thus, in the NHS context, the Public Health England: Interim Guidance for Primary Care guidance, dated 19 March 2020, states that:
“Once a possible case has been transferred from the primary care premises, the room where the patient was placed should not be used, the room door should remain shut, with windows opened and the air conditioning switched off until it has been cleaned with detergent and disinfectant. Once this process has been completed, the room can be put back in use immediately.”
If that is all complied with properly, a critical work employer asking their employee to return to that room or place of work is arguably likely to be issuing a reasonable instruction. What of the crowded public transport dilemma? Would the broad interpretation of ‘danger’ extend to the circumstances of arrival, and potential carrying the virus to others, by virtue of having been in close contact with the public? Given the lockdown, it is hard to imagine that such a fear would be unreasonable, but would such a broad interpretation be given?
So, in essence, we may find ourselves extraordinarily in the situation where the employer’s instruction is likely to be reasonable, and the employee’s refusal to attend the place of work fearing serious and imminent danger may also be reasonable. In employment law terms, that leaves both decent employers and fearful employees with difficult questions about what steps they take in such circumstances. If an impasse is reached, both sides need a solution.
At the time of writing, the detail of the Job Retention Scheme is not yet available. Whilst clearly necessary and welcome, the government’s emergency measures do not provide enough answers to these practical problems yet. ‘Furloughing’ essential key worker staff does not resolve the employer’s need (and indeed the national need) to retain critical staff in critical workplaces. Its all-or-nothing approach to work also reduces the potential for employers to seek to retain staff for some portion of their working time. Moreover, critical employees cannot be replaced at whim, especially with the population in lockdown and fearful, and when faced with the urgent need for those employees now. Moreover, furloughing those staff is likely to prevent them being redeployed elsewhere. This is without going into the present difficulties associated with the technical reality that most employment contracts in the UK do not contain a furlough provision.
Marching down the misconduct/disciplinary route may result in a health and safety detriment or dismissal, pursuant to s.44 or s.100 ERA, but even if it is legitimate to do so (and there are circumstances where it may be), it is not likely to resolve the issue for critical employees or employers in public health or social care. The employer needs their staff available to work and discipline will neither create good will nor good relations in struggling workplaces, which will barely have the time to cope with the disciplinary processes in any event. There may come a point where there are no alternatives, but there would be good sense for all parties to avoid escalating drama at this crisis time.
None of these are ideal situations, and all of them leave both the fearful key worker employee and the decent employer exposed, in practical, financial and/or legal terms. Solutions may need to be found on an ad hoc basis, perhaps relating to unpaid leave or annual leave, and agreed as best possible between all sides.
The complexities do not end there, however. There are also multiple associated issues, including reasonable adjustments arising from disability, or particular requirements for pregnant, disabled or vulnerable workers. No equality impact assessments were available at the time of writing associated with the Coronavirus Act 2020. There are multiple equality challenges which will arise in these unprecedented times. Both the ERA whistleblowing provisions and arguments about the broader human right to health are likely to be engaged.
And none of this begins to touch on the altogether different problem relating to the notionally self-employed ‘limb b’ workers or agency workers who may face very similar dilemmas, often working cheek by jowl with employees doing the same or similar work, but without any of the already inadequate safety nets that employees have.
The scale of the challenges before government is unprecedented. At the time of writing, the details of the Job Retention Scheme are not yet available. But, in full recognition of the reality of ironing out complex problems in days rather than months, it is hoped that government is listening to the complexity of problems being faced by employees who need work and employers who need employees. It seems emergency employment legislation is necessary, failing which the very clearest of guidance.
Cloisters barristers are available to discuss the many issues arising in the current COVID-19 crisis. Please contact us through our clerks in the usual way.
26 March 2020