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Employment law: Staff returning to the workshop

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As the phased return to normality begins, employers are going to have different needs and requirements in how to restart operations. Karen Holden, Founder of employment law specialists A City Law Firm, provides the legal requirements and considerations regarding workshop employees.

Can an employee be forced to return to work? What if they are not comfortable to do so? On what basis can they refuse to go to work?

Employers should realistically undertake a Covid-19 specific risk assessment in respect of their employees returning to work. Employers do have a legal health and safety obligation so they must ensure they are operating effective social distancing measures within the workplace. If they have not, employees have a right not to attend their workplace if there is a reasonable belief that doing so would pose a ‘serious and imminent threat’. If an employee decides to not go back to work for this reason, they can put in ‘a grievance at work’ to protect their employment rights and help to stop an unfair dismissal.

The business needs vs safety will be governed by the risk assessment, but staff must be treated fair and non-discriminatory and we strongly advise that staff are consulted and discussions take place as to their needs to avoid claims and also to motivate staff.

Furlough

The scheme requires employees to be furlough for a minimum of 3 weeks, if an employer wants to extend the period, they will need staff consent to vary the agreement. From August, the furlough scheme will allow employers to bring back employees on a part-time basis to aid in the transition back to normal working life.

Usually staff policies or handbooks are outside the employment contract so can be amended without consent and simply communicated, so staff should be informed and should review these during this period as they will be obliged to follow these procedures.

Skills and re-training

The golden rule of the current job retention scheme until August (furlough), is that an employee may not provide services to, nor generate income for, the employer. They may however undertake training, such as online training courses to update their skills. They must be paid at least the National Minimum Wage for the period of training.

If staff contract the virus, is the employer responsible?

An Employer is only responsible if they cause the condition. This means that the employee must prove, with medical evidence, that it was highly likely it was whilst at work. The employee would need to consider if their employer has put in reasonable health and safety measure like social distancing. This is why a plan and policy is key for an employer to protect itself and be able to show it has taken as much effort as possible to protect its staff. Whilst not impossible, it would be difficult to show that the virus was contracted whilst at work due to the large amount of people contracting the illness. If the employee could show this, then they would need to consider bringing a personal injury claim against their employer.

If a member of staff is showing symptoms, come to work and infect other employees, who is responsible?

Law enforcement have been seen to be very strict on people intentionally passing on the virus. People have a duty to protect themselves as well and not to be reckless, and this extends to their workplace. If staff are showing symptoms, they need to notify the employer and self-isolate before returning to the workplace. If they knowingly and willingly return to the office with such symptoms, the employer can bring disciplinary proceedings and may suspend them from work, or even issue a disciplinary or dismiss them if they have knowingly breached its policies on health and safety.  

Likewise, an employer also has a duty of care towards its staff and other employees. If staff are showing symptoms, they must take action to protect others in the workplace by sending the person home and all those who have been in contact with them. If they are not appearing to action a plan or policy, an employer could be held vicariously liable.

There can be both criminal and civil liability in terms of passing on infectious disease.

What happens if an employee does not carry out social distancing or follow the employees ‘Back to Work’ policy?

If an employee is not adhering to the business policies or government instructions, then the employer may be able to dismiss them for a serious breach of health and safety and breach of contract. Clear policies must be introduced, maintained and communicated.

Is an employer required to provide PPE?

Employers have both a common law and statutory duty to ‘ensure, so far as reasonably practical’ the health and safety within a workplace. To breach this duty is both a criminal and civil offence.

Employers will need to be aware of legislation relating to PPE in the wake of the COVID-19 pandemic. The PPE Regulation 1992 should now be on the forefront of all employers’ minds. The moot point here will be what is ‘reasonably practical’. Employers should all undertake COVID specific risk assessments and ensure they have policies in place and relevant training is provided.

Specific PPE requirements and guidance has been published by the government and is available on their website. It is common that social distancing, as a minimum, is adhered to wherever possible.

It will be on the employer to provide new and innovative ways to adapt their workplace in line with current advice. The HSE may perform spot checks on employers to ensure they are adhering to the guidance. A failure to adequately do so could lead to civil and criminal charges.

Businesses will be under scrutiny when they start bringing employees back to work and this will be focused on how they manage the health and wellbeing of their staff.

The key for everyone is careful planning and assessment, consulting and communicating concerns, with clear policies that are practical and agreed. The basics will include a remote working policy, a risk assessment and return to work policy for staff and access to services by clients and visitors, a Health and Safety audit of procedures and policies, and clear communications with staff.

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