Introduction

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?

What are employers' health and safety obligations?

There are four key legal responsibilities here – namely:

  • health and safety legislation;
  • the common law duty of care;
  • the duty of trust and confidence; and
  • the duty not to subject employees to a detriment or dismiss them for taking evasive action over serious and imminent danger.

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:

  • an employee suffers harm, which is caused by or materially caused by the employer's actions or omissions;
  • the harm was reasonably foreseeable; and
  • it is fair, just and reasonable to impose liability on the employer.

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.

Does an employee's commute pose a serious and imminent danger?

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.

Edwards and why it does not resolve these questions

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:

  • The journey to work in this case was unusual. It involved travelling over the (relatively remote) road which leads to HMP Dartmoor. The officers had been asked to meet in a supermarket car park, from which prison vehicles would collect them. The employer seems to have been assuming some responsibility for this part of the journey and it was asking the employees to travel in work vehicles. This is different from a city commute on public transport.
  • The EAT's judgment did not deal with the specific issues of whether Section 44 of the Employment Rights Act extends to travel to and from work, or whether a failure to pay an employee where no work has been performed always amounts to a detriment.
  • The EAT stated that it made a difference what the police had said about prison vehicles using the closed road. If the claimants were told that the police had confirmed that they could travel in the prison vehicles, "it would be very difficult indeed for the claimants to maintain that they had a reasonable belief in serious danger". This raises questions over whether advice (eg, from bodies such as the Scientific Advisory Group for Emergencies) could influence the issue of reasonableness.

How should employers deal with this issue?

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 the time being, all employees who can work from home should continue to do so.
  • If employers are planning to reopen, they should engage with employees on how they propose to travel to work and any issues that they foresee. This will ensure that employers are aware of employees' potential concerns and can address them in advance. Employee surveys are a good way to do this.
  • If employers can, they should ask only those employees who are happy and willing to attend the workplace to do so. Employers should keep employees who do not feel that they can travel safely on furlough or working from home. Employees who have not been asked to return cannot easily say that they have 'refused' to do so within the meaning of Section 44 of the Employment Rights Act. If employers can avoid calling on public transport users to return for as long as possible, they can reduce or at least defer any arguments over whether their duties extend to the commute.
  • Where some employees must attend work, employers should assess each employee's circumstances on an individual basis. Whether an employee can refuse to return to work under Section 44 of the Employment Rights Act will be judged according to their own circumstances and beliefs, so employers can reduce exposure to claims in practice by taking a case-by-case approach, taking account of the individual's commute and general health. For instance, an employee with an underlying health condition (falling within the government's definition of 'clinically vulnerable') who must rely on public transport will have a greater chance of successfully relying on the statutory protection.
  • Employers should support employees to travel by means other than public transport, such as walking, cycling or (in appropriate cases) driving. This could involve a range of measures – from helping employees to access bikes or fitting more bike storage to adjusting hours so that employees can walk to work. Employers could also consider whether there is another place where the employee could work, such as a different office or a client site.
  • If some employees must come back and must use public transport, employers should document the rationale for their decision. Employers should consider implementing flexible or off-peak start and finish times or doing whatever else is reasonably practical to help control the risks, such as providing face coverings. Employers should ensure that employees are aware of the government guidance on travel and what they should be doing to avert risks.
  • Employers should not overlook mental health. Many people will be anxious about the prospects of returning to work, especially using public transport. Employees may also be concerned about working alongside employees who have travelled on public transport. It is important to support everyone's wellbeing.