It is not clear whether staff can refuse to come into work or decide to leave a workplace if they think it’s unsafe because of Covid-19, the Law Society has told law firms.
The society also warned firms that they would need to redraw many of their employee policies to accommodate the pandemic.
Solicitors’ representative body has issued detailed guidance to help law firms get staff safely back to the office or keep working from home.
It said the Employment Rights Act 1996 protect employees if they leave or refuse to attend the workplace for health and safety reasons, but the rights have “rarely” been tested in the employment tribunals, and never in a pandemic situation.
“This means it’s hard to be certain as to the strength of this right. Where an employee has been dismissed because of taking protected action, under section 100(1) of the Act any compensatory award is uncapped, so those organisations that do not take seriously this right leave themselves open to a potentially significant financial penalty.”
The guidance said an added complication was that a complaint about health and safety was likely to count as a protected disclosure for the purposes of whistleblowing legislation. “This opens up the possibility for the employee to claim interim relief.”
The key factor would be whether an employee’s belief that a workplace is unsafe was reasonable when they made that decision, the society continued.
“It does not matter what the employer’s view is, nor whether the working environment complied with health and safety standards. The fact the one employee is willing to work does not negate the belief of another that there is imminent danger. Employees do not have to consult before deciding that a workplace is unsafe to gain protection.”
The guidance suggested that government messaging and news reporting of coronavirus meant it was likely to be reasonable for employees to believe there was a serious and imminent threat unless employers took appropriate action.
“The best way to minimise the risks of falling foul of sections 44 and 100 [of the Act] is to observe health and safety laws, including the government’s guidance on providing a safe workplace and communicate to your workforce how you’re doing this.”
This included making the firm’s risk assessment, or an abridged version, available to staff: “Proof of a good communication strategy and documented decision making will help if you need to defend yourself against such a claim.”
The guidance advised that, if an employee said they were refusing an instruction because they thought it was dangerous, “you should investigate whether this view was reasonable before deciding how to proceed”.
It explained: “If the refusal was reasonable to make though mistaken on the facts, you should communicate with the employee to make sure they understand your risk assessment.
“At the same time, if there is an effective compromise, then an alternative form of working should be agreed, even if you do not believe that it’s strictly necessary for health and safety reasons.”
The society said law firms needed to revisit their health and safety policies, institute a process for handling employee complaints and concerns about health and safety, and possibly change their data processing policies.
“If your organisation is working in new ways, then there might be new challenges that need to be managed, which might include creating new specifically focused policies,” it continued.
“For example, those who host a video call become the data controller for the information created in the meeting, a responsibility they would not have when hosting a face-to-face meeting.”
Another issue that was unclear, the guidance said, was whether employers have a responsibility to take into account the risks involved in travelling to the office.
“The safest way to minimise the risk of litigation is to strictly follow the government’s guidance in this area. At the moment the government is asking people to use public transport only if it is absolutely necessary.
“If you have employees that must come into work and would normally use public transport to do so, you should consider how to minimise the risk of exposure to coronavirus.”
This could include staggered start and finish times and offering to supply appropriate face coverings.
“You could also consider how to support employees to travel in other ways – for example, electronic scooter, cycling, running, moped. However, some of these activities may be difficult to support due to the complication around providing facilities such as showers.”
Law Society president Simon Davis said: “Workspaces that used to be assumed safe, such as offices, are now considered places that may enable a high rate of transmission unless the right safeguards and policies are put in place.
“Everyday activities, such as commuting on public transport or making coffee in the office kitchen, have greater public health considerations than prior to the pandemic.
“This guidance is designed to help employers understand how the legal framework could apply to managing workforces while coronavirus poses a danger to the public’s health.”
There may be different rules and regulations in place in Wales, where the devolved administration has responsibility for public health.
For example, in Wales employers are under a specific legal obligation to take all reasonable steps to enable social distancing within the workplace.