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27 May 2020
What are employers' health and safety obligations?
Does an employee's commute pose a serious and imminent danger?
Edwards and why it does not resolve these questions
How should employers deal with this issue?
As more people return to their workplaces, the question has arisen as to what extent employers' duty of care covers risks to employees during their commute to work. Further, how should employers deal with staff refusing to travel to work for fear of contracting COVID-19?
Following the government's publication of its post-COVID-19 recovery strategy, employers are beginning to consider how they may safely reopen their workplace for those who cannot work from home.
Employers have statutory duties to provide a safe workplace and general duties of care towards anyone who accesses or uses their place of business. Therefore, in order to prepare for reopening, employers must undertake a health and safety risk assessment to identify current potential hazards in the workplace, including the danger of COVID-19 transmission between employees. Employers 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 rather the risks of using public transport to get there. Does employers' duty of care extend to commutes?
There are four key legal responsibilities here – namely:
Health and safety legislation
Under existing legislation, employers' duties to ensure the health, safety and welfare of their employees extend only to the workplace or where an employee is acting in the course of their employment. With limited exceptions, that does not include risks that they may face while travelling to and from work.
Common law duty of care
Employers also have a common law duty to take reasonable care for the health and safety of their employees. Employers can be found liable for negligence if they are in breach of this duty. Employers will be in breach only if:
This duty is not extended to an employee's commute and, under ordinary circumstances, it would not be reasonable to do so. However, in the context of the COVID-19 pandemic, employers could be found to have some duties to help employees avoid COVID-19 risks relating to their commute.
Duty of trust and confidence
Employers also have 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, a court might conclude that employers' implied duties of care and to maintain trust and confidence require them to have regard to risks associated with an employee's commute. In other words, employers could potentially risk constructive dismissal claims if they put employees in an untenable position over their commute to work.
Duty not to subject employees to a detriment or dismiss them for taking evasive action over serious and imminent danger
This is the most relevant obligation, which is analysed below.
Under Section 44 of the Employment Rights Act 1996, employees have a right not to be subjected to any detriment for refusing to come to work in circumstances where they reasonably believe that they are in serious and imminent danger which they could not reasonably have been expected to avert. It does not matter if the employer disagrees about the danger – the question is whether the employee's perspective is reasonable.
In this situation, the employee has the right not to be subjected to any detriment on the ground that they left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or any dangerous part of their workplace.
This statutory right appears to have been designed to protect employees from urgent dangers in the workplace (eg, fire or asbestos) where they have no reasonable option but to leave or refuse to return to work. While the reference to the 'place of work' in Section 44 might suggest that it is limited to that situation, it is unclear whether it was also envisaged to cover dangers posed by an employee's commute to work.
Employees who fall within the protection of this section have the right to stay at home on full pay. At least, that is the implication, since 'detriment' would ordinarily cover loss of pay. However, there may be scope for arguing that an employee who stays home on furlough or unpaid leave because of travel concerns is not being denied any pay that would otherwise have been due, or that pay is not being withheld because the employee refused to return to work. These arguments could possibly find favour with an employment tribunal in circumstances where the employer is taking all reasonable steps to control the risks.
In this context, it is interesting to note the 2014 case of Edwards v Secretary of State for Justice, which concerned 13 prison officers who refused to travel to work along a road which had been closed due to heavy snowfall. They were required to wait at an agreed pick-up point, with other prison staff, in accordance with the employer's adverse weather policy. The prison sent a 4x4 truck and later a minibus, in which most of the staff travelled to work. The 13 claimants refused, citing concerns for their safety. They were not paid for that day and brought claims for unlawful deductions from wages, also asserting that they had suffered a detriment under Section 44 of the Employment Rights Act.
The employment tribunal dismissed the claim but the Employment Appeal Tribunal (EAT) allowed an appeal on the basis that the employment tribunal had failed to properly consider the reasonableness of the prison officers' belief that travelling to work via the snow-obstructed road would place them in serious and imminent danger. Significantly, the EAT stated that it was irrelevant that some of the prison staff had made the journey safely, as this did not have any bearing on the reasonableness of the claimants' belief. The case was sent back to the employment tribunal and the outcome is unknown.
While this case certainly suggests that employees can take protected action over an unsafe journey to work, it does not resolve the above questions for the following reasons:
Litigation on this issue and other legal conundrums raised by COVID-19 is expected, but the outcome of any litigation may be unknown before employers must make practical decisions about how to mitigate their risks. Employers should consider taking the following steps:
For further information on this topic please contact Shalina Crossley or Lucy Lewis at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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