Returning To Work After Covid-19 ' Some Legal Issues

• Published date: 28 July 2020
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Contract of Employment, Unfair/ Wrongful Dismissal, Health & Safety, Redundancy/Layoff, Employment and Workforce Wellbeing
• Law Firm: 4 New Square Chambers
• Author: Mr Paul Nicholls QC

Following the government's recent announcement of a partial relaxation of the lockdown, the prospect of a return to work is in sight for many people. In some industries such as construction staff are already being encouraged to return to work. As the R number falls, others will no doubt follow. But what are the legal pitfalls which await employers?

The starting point, of course, is that employers owe a duty to provide a reasonably safe system of work and to take reasonable care for the safety of their employees: British Aircraft Corp v Austin [1978] IRLR 332. In addition they are bound by the implied term of trust and confidence. For both reasons, employers will need to take steps to make their workplaces safe for individuals to return. What steps will have to be taken will vary from employer to employer but steps may include closing canteens and other communal gathering places, staggering work start and finish times and taking steps to enable social distancing to be put in place. No doubt the provision of PPE will also have to be considered.

There is an obvious risk of constructive dismissal claims if employees feel that employers have not gone far enough to protect their well-being. Employees who feel that inadequate steps have been taken may resign and say that their reason for doing so is a failure to put in place sufficient steps to preserve their safety. That could give rise to claims of unfair and wrongful dismissal. In addition, employees may seek to present their claims as protected disclosure cases. They may say that they had been complaining about the employer's failure to take action and that the continued lack of response was because of the complaints. Hence they may seek to formulate a case based on protected disclosures (or health and safety disclosures under s 100). Strictly speaking this analysis should not work because the question in an unfair dismissal claim would be what was the employer's reason for its breach of contract. If the breach was failing to take adequate steps to ensure safety of employees, it is difficult to see how the reason for that breach was the fact of a complaint made by employees. It might be, in a particular case, that the employer ignored the complaints, but it would still be difficult to say that the reason for inaction or insufficient action was that those complaints had been made. Nonetheless, I am sure that such claims would be brought.

In order to respond to or pre-empt them, the employer would need to show that it had not acted in breach of contract because it had taken such steps as were reasonable to protect health and safety. It does not seem to me to follow that the fact that, for example, in a given workplace, corona virus appeared would mean that there had been a breach. The term does not require complete success, only that reasonable steps are taken. What that means as a minimum is that an employer can show it has followed government guidance: https://www.hse.gov.uk/index.htm#. Anyone failing to have regard to this guidance is likely to find itself in difficulty. But individual circumstances will vary and it would still be open to a court or tribunal to find a breach of contract even if...