Does An Employer's Duty Of Care Extend To Commuting To Work? Guidance From The UK

• Published date: 09 June 2020
• Author: Shalina Crossley (Lewis Silkin) and Lucy Lewis (Lewis Silkin LLP)
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Government Measures, Employment and Workforce Wellbeing, Operational Impacts and Strategy
• Law Firm: lus Laboris

Following the government's publication of its post-Covid recovery strategy, employers are beginning to consider how they may safely reopen the workplace for those who cannot work from home.

All employers have statutory duties to provide a safe place of work and general duties of care towards anyone who may be accessing or using their place of business. In order to prepare for reopening, employers are therefore required to undertake a health and safety risk assessment to identify current potential hazards in the workplace including the danger of Covid-19 transmission between employees. The employer must then take action to minimise those risks.

But what of risks faced by employees during their commute to work? For many employees, the key concern is not what happens in the workplace, but the risks of using public transport to get there. Does the employer's duty of care extend to those?

What are an employer's health and safety obligations?

There are four key legal responsibilities here:

1. Health and safety legislation

Under the existing legislation, an employer's duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment. With very limited exceptions, that does not include risks they may face while travelling to and from work.

2. Common law duty of care

Employers also have a common law duty to take reasonable care for the health and safety of their employees. An employer can be found liable for negligence if it is in breach of this duty. An employer will only be in breach if:

An employee suffers harm, which is caused by or materially caused by the employer's actions or omissions.

The harm was reasonably foreseeable.

It is fair, just and reasonable to impose liability on the employer.

We are not aware of this duty being extended to an employee's commute, and under ordinary circumstances it would not be reasonable to do so. However, in this context, it is possible that employers could be found to have some duties to help employees avoid Covid-19 risks relating to their commute.

3. Duty of trust and confidence

An employer also has an implied contractual duty not to act in a manner which is calculated or likely to destroy the relationship of trust and confidence which underpins all employment relationships. In the current situation, it is possible a court might conclude that your implied duties of care and to maintain trust and confidence require you to have...