The PM delivered a tentative ‘lockdown release’ message last night and we await further clarity. As we reported in our update it is anticipated that there will be specific guidance for different businesses to be debated in Parliament and issued in the next few days.

Sir Keir Starmer has called for a national safety standard for the operation of workplaces when returning to work after the lockdown; his rationale focusses on the primary concerns; keeping people safe, preventing a second wave and giving people confidence to return to work. But there are also serious business reasons as to why such a national standard is needed as highlighted this morning on Radio 4 by Dan Rowan, Sports Editor, talking about the Premier League meeting today to discuss completing the current Premier League season; when highlighting what would be discussed, he stated “…Club liability if players fall ill is yet to be worked out…”. That’s the case for all employers, not just the Premier League Clubs.

As we set out in our earlier update, Section 100 and Section 44 of the Employment Rights Act 1996 affords protection to all employees (even those with under 2 years’ service) against being dismissed (automatic unfair dismissal) or suffering a detriment for refusing to return to their place of work or taking ‘appropriate’ steps to protect themselves or others from danger where they reasonably believe they are exposed to a serious and imminent threat.

This raises a number of important issues for employers including how to respond to those employees who, for example, refuse to return to the workplace until such time as some specified action has been taken. Indeed, the GMB and other Unions are currently saying just that; they have outlined to the Government in the strongest of terms, that their workforce will not return to work until their health and safety requirements are met.

For an automatic unfair dismissal, the employee would have to show that they ‘reasonably believed’ a danger to be ‘serious and imminent’ and that the steps they proposed to take (such as staying at home) were appropriate in all of the circumstances.  Employers are already developing policies to dictate measures that must be taken by staff when returning to work, including policies on hygiene practices and workplace configurations. Disciplinary policies are being re-written to enhance the importance of compliance with such policies and some enterprising employers have introduced a ‘bonus’ payment for compliance to encourage effective compliance using a ‘carrot’, rather than the ‘stick’ approach of disciplinary processes, which can divert management time.

However, without a national safety standard, an employer will have no certainty that any particular combination of measures implemented by it, will be sufficient to ‘pass the test’ of what amounts to sufficiently addressing any ‘serious and imminent’ threat in the context of Covid-19 and/or whether or not the steps being taken by the employee are ‘appropriate’ (assessed objectively) in all the circumstances.

If the return to work guidance issued by the Government is vague and unspecified, employers would have to be guided by case law as it develops which is wholly inadequate and leaves employers exposed to claims, including personal injury claims or management paralysis.

It is vital that a ‘minimum standard’ is set by means of a National Safety Standard to give employers some certainty as to those liabilities that arise.

The team will continue to monitor and report on the situation as it develops. If you have any questions, please contact Linky Trott, or any member of the Employment team.

To review our previous updates, please click here.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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