Legal rights and coronavirus: Health and safety at work
As the coronavirus continues to have a big impact on the way we all work, employment solicitors Emma Satyamurti and Shubha Banerjee examine the current laws and regulations relating to health and safety at work.
Posted on 03 April 2020
You may have many questions about working during the Covid-19 health crisis. We hope this factsheet provides some of the answers to these questions but please note that it is not a substitute for legal advice about your employment rights based on your own particular circumstances. If you have concerns, we recommend that you speak to your trade union or consult a lawyer.
My employer is requiring me to be at my workplace even though I don’t think it’s safe. What protection do I have?
The law says that employers must protect the health, safety and welfare at work of all of their employees as far as reasonably practicable. If you are an employee, the law protects you from bad treatment or being dismissed if you leave (or propose to leave) your workplace in ‘circumstances of danger’.
It also protects you if you refuse to return to the workplace in such circumstances. Bad treatment could include disciplinary action, or potentially a reduction in pay.
You are also protected if you take (or propose to take) appropriate steps to protect yourself or others from the danger, unless those steps are so negligent that your employer could have dismissed you for taking them for example, leaving machinery unattended without first switching it off where you could have switched it off before leaving.
To be covered by these protections, you must reasonably believe the danger to be;
- serious; and
- imminent, i.e. likely to occur very soon.
If you are avoiding the workplace, the danger must also be one which you couldn’t reasonably have taken steps to avert. So, for example, if it was possible to implement the two metre distance rule by working at another desk/area, or if you could have asked for hand sanitizer to be provided, but you didn’t do these things, then the protections may not apply.
Is the risk of catching Covid-19 a serious and imminent danger?
This will depend on where and how you work and the facilities that you have or could have in your workplace. The sorts of issues that are likely to affect the seriousness of the risk include:
- How practical is social distancing in your workplace? If, for example, you work in a small and / or crowded space, or in a job such as construction where you need to work closely with other people , or where you provide a service to the public at close quarters such as over a counter, this may be more difficult;
- What cleaning regime is in place? If there isn’t regular deep cleaning of the workplace, or at least of frequently touched surfaces such as door handles, bathroom surfaces, and shared equipment, this will increase the danger;
- Are there adequate washing facilities? Are there plenty of accessible soap dispensers, disposable hand-towels and hand sanitizers?
- Does your work expose you to people at higher risk of having the virus? If you are working with people with a higher exposure to the virus, for example if you work in the healthcare sector, the danger of catching it may be more serious for you – if you are not provided with appropriate personal protective equipment (PPE) this may well increase the danger.
- Does a colleague have it? If you work in close proximity to someone you reasonably believe may have the virus, or who lives with someone who does, and who is attending work against government direction, this may well increase the danger to you.
As well as the above factors, if you are at particular risk of serious illness from Covid-19 due to an underlying health condition, then you’re more likely to be protected by the law if you leave the workplace or don’t go in, because the danger of catching Covid-19 will be more serious for you. You may also have additional protection under disability discrimination law.
Finally, it is worth noting that the government’s emergency Coronavirus regulations introduced on 26 March to implement the social distancing measures, describe the coronavirus and its spread as a ‘serious and imminent threat to public health.’ This should also support employees’ arguments that they should be protected for taking the steps they took.
What if I am healthy but live with someone vulnerable?
The law says that if you leave or propose to leave, or don’t return to, your workplace, then the law only protects you if you were the onein danger, i.e. it’s less likely to protect you if your concern was for someone you live with.
However, in a case where you’ve taken steps to protect yourself or others from the danger, then the law may protect you, as you may be seen to have taken steps to protect ‘others’, those others being vulnerable people that you live with. Such steps could potentially include leaving the workplace, though the way the legislation is drafted leaves this slightly unclear.
What counts as an ‘appropriate’ protective step?
This will depend on the circumstances and similar considerations as set out above about whether Covid-19 is a serious and imminent danger will be relevant here – so taking account of where and how you work, and the facilities that were or could be made available. The question of whether the steps you took were reasonable given the danger involved will also be relevant. Again, the answer to this will depend on what you did.
Will I get paid while I am not attending work?
Can you do your work from home? If so, you should be paid as normal.
If not, and if the protections described above apply to you, then your employer should continue to pay you; reducing or stopping your pay would be unlawful detrimental treatment.
Additionally, please see our factsheet ‘Covid-19 and your employment rights’ for more information on pay entitlements.
I want to raise my health and safety concerns with my employer but am scared how they will react
Broadly, you are protected from bad treatment or dismissal for carrying out health and safety-related activities if you are an employee health and safety representative or a member of your employer’s health and safety committee.
You are also protected if you raise health and safety concerns with your employer in a reasonable way where there is no health and safety representative or committee at your workplace, or where there is, but it wasn’t reasonably practicable to raise your concerns with them.
You may also be protected as a whistleblower depending on the specific circumstances. You may wish to consult your employer’s policy on whistleblowing or reporting wrongdoing if they have one, and follow any process set out there for how to raise your concerns if this is practical.
I’ve been told that if I self-isolate, this will count towards my sickness absence. What should I do?
If you are dismissed on capability grounds because your sickness absence triggers your employer’s attendance management system due to self-isolation, it is more likely that such a dismissal would be unfair in law and that you could claim compensation if you have at least two years’ service.
Following the government’s requirements, employers should be allowing anyone who possibly can to work from home. Where this is not possible, we would hope that in these unusual times, most employers will look to work with their employees to resolve concerns and find safe ways around issues. It is worth remembering that employers have obligations generally under health and safety law including duties to carry out risk assessments and keep their workforce safe.
If you have concerns, it is a good idea to try to work with your employer in the first instance, suggesting any sensible work-arounds you can think of. The starting point could be whether there are any steps your employer could take to make the workplace safer.
For example, if your work involves assisting members of the public across a counter, supermarket till or similar, could a transparent barrier be installed to protect you? Or could changes be made to working practices such as reducing in-person meetings to minimise close contact? Or could your employer find you a parking space near your workplace so that you can drive into work rather than having to use public transport?
If such steps are not possible (or are not made) within the workplace, and your normal role doesn’t lend itself to working from home, are there other useful tasks that you might not ordinarily do but that you could offer to do from home instead, such as making phone calls or doing paperwork?
It is a good idea to make or confirm suggestions in writing and to try and be as helpful as possible; if things go wrong and your employer mistreats you because you have raised health and safety issues, it will be useful to have evidence of your reasonable approach if it comes to a legal argument as to whether you are covered by the health and safety protections above.
Bringing a claim
If your employer does not take a reasonable approach, you can enforce your rights in the employment tribunal though this is a last resort. While you normally need at least two years’ service to bring a claim for unfair dismissal, if your dismissal is because you have taken health and safety-related action as described at the beginning of this factsheet, or you are protected as a whistle-blower, the dismissal will be automatically unfair and you do not need two years’ service.
The time limit for starting the process of bringing a claim is normally three months less one day from the date of the treatment you are concerned about, or from your last day of employment if you are dismissed. The first step is normally to apply to ACAS so that you can start a process called Early Conciliation.
Please note that time limits can be tricky to calculate and are strictly applied; we would strongly suggest that you seek legal advice promptly if you are considering bringing a claim.
Please see our factsheet ‘Covid-19 and your employment rights’