Employers' Duty Of Care: Is Your Workplace Safe?15th Sep 2021
Is Your Workplace Truly Covid-Safe?
Covid-19 has made it harder for employers to meet their duty of care. Companies worry that they’re now at greater risk of being taken to an employment tribunal over workplace safety issues.
Some employees and workers simply don’t feel safe returning to work – even if they’ve had both vaccinations. They worry whether their workplace can ever be truly Covid-safe.
Some are refusing to go back to the office. They prefer the safety, convenience and productivity benefits of working from home. They don’t miss the commuting and office politics.
It puts employers in a difficult position. How robust can they be in demanding that their employees stop working from home and return to the workplace?
Employers have a common law and implied contractual duty to take reasonable care for the health and safety of every worker. Also, the Health and Safety at Work etc. Act 1974 requires employers to take all reasonably practical steps to ensure the health, safety and welfare at work for all their employees and workers .
Refusal To Attend A ‘Dangerous’ Workplace
Employees are required to obey their employer’s reasonable instructions. But Section 44 of the Employment Rights Act 1996 allows employees to leave an unsafe workplace – or refuse to return to it – with no fear of dismissal. Nor should they suffer any kind of detriment, such as loss of wages.
Employees are entitled to stay at home if they reasonably believe that going to the workplace represents a “serious and imminent danger” which cannot be averted. They don’t have to wait until someone is injured.
Section 44 goes on to:
- caution employees against taking risks
- make it clear that it is the employee’s opinion that counts.
Until 31 May 2021, this protection covered only employees – not workers (who have fewer rights). Now it covers both, following the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.
And under Section 100 of the Act, it is unfair to dismiss an employee if they were designated to carry out health and safety duties…and then they did so. ‘Designated’ is an important word here; the employee must have been tasked to carry out activities to prevent or reduce health and safety risks – over and above their normal role.
Any dismissal that breaches Section 100 is deemed to be automatically unfair. Employees also do not need the usual minimum two years’ service to be able to bring a claim for automatic unfair dismissal in these circumstances.
Furthermore, the statutory cap for compensation awards does not apply where the automatic unfair reason for dismissal relates to health and safety. The employment tribunal has complete discretion in making any award to the former employee.
But the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 that covers Section 44 does not apply to Section 100. So only employees get Section 100 protection – not workers.
Returning To Work – What One Tribunal Ruled
Rodgers v Leeds Laser Cutting Ltd: an employee said he would not be returning to work “until the lockdown eased”. He was worried about his children (a seven-month-old baby and another diagnosed with sickle cell disease) after one of his colleagues displayed Covid-19 symptoms and began self-isolating.
The claimant was one of a team of five in a workplace the size of a large warehouse. In March 2020 the employer implemented Covid-19 safety measures including social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing.
The tribunal dismissed the claim for automatic unfair dismissal. It ruled that the workplace was no more dangerous than general society “and possibly safer than the community at large”.
But remember that each case is judged on its merits. This ruling does not give employers a free hand to force employees back to work.
Six Types Of Hazards At Work
- Safety hazards – usually associated with factories, machinery or construction sites. But any workplace can have slip, trip and fall dangers.
- Biological hazards – the risk of exposure to dangerous substances and diseases, such as those found in hospitals, laboratories, mortuaries, farms and abattoirs. Other occupations at higher risk include dentists, hairdressers, beauticians and tattooists.
- Physical hazards – such as extreme weather or harmful environments. This can include continuous exposure to loud noise or the Sun’s rays.
- Ergonomic hazards – manual roles that require sitting for long periods or lifting.
- Chemical hazards – exposure to dangerous liquids, solvents or gases.
- Workload hazards – issues that could involve stress (such as workload, violence or aggression).
The year 2019/20 saw a record low (113) in the number of people killed in accidents at work. But sadly the number of deaths is rising again: 142 in 2020/21.
Latest data (2019/20) released by the Health & Safety Executive (HSE) in July 2021 show:
- 1.6 million working people suffered from a work-related illness
- 2,369 mesothelioma deaths due to past exposure to asbestos
- 693,000 working people suffered an injury at work
- 65,427 injuries were reported to employers under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013
- 38.8 million working days were lost due to work-related illness and workplace injury.
Accidents at work are sadly all too common – as our personal injury solicitors will tell you. They handle a wide range of No Win No Fee workplace injury claims. These include injuries caused by:
- dangerous or defective machinery
- slips/trips on unsafe surfaces
- manual handling or lifting
- repetitive strain
- falling objects
- assaults at work
- negligent co-workers.
Read how Coles Miller helped a lift engineer to claim £3.4 million in compensation after he was left paralysed by a workplace accident.
Sexual Harassment In The Workplace
Employees and workers have the right to live and work freely without the fear of violence or harassment. Employers have a duty to protect their staff from the unwanted attentions of colleagues, customers, suppliers (or anyone else they might meet at work).
Failure to protect them can result in the employer being found vicariously liable at an employment tribunal. This is why the office Christmas party season – now only a few months away – can be such a legal minefield.
Employers, employees and workers who are concerned about sexual harassment in the workplace can find out more here.
Stress: Mental Health Compensation Claims
Employees are becoming increasingly aware of their rights with regard to stress caused by work.
For a compensation claim to be successful, the employee must prove they have a psychiatric illness – and that the employer failed in their duty of care. They must demonstrate that:
- the working environment posed a risk with regard to causing a psychiatric illness
- the employer knew (or should have known) that exposure to this risk could cause a psychiatric illness.
Get Expert Legal Advice
Employers – are you facing the threat of a tribunal claim? Worried that your company or organisation may be at risk from possible litigation in the future?
Employees – are you concerned for your safety at work? Have you been injured in an accident?
Contact Coles Miller solicitor Hugh Reid for advice on workplace health and safety, unfair dismissal and other employment law matters.
Contact Coles Miller Managing Partner Adrian Cormack, head of the Personal Injury Department, to claim compensation (No Win No Fee) for injuries suffered at work.