By Martin Chitty (employment partner) and Andrew Litchfield (health & safety partner) at Growling WLG (www.gowlingwlg.com)
The situation surrounding COVID-19 continues to evolve. Employers need to stay on top of developments as lockdown eases by complying with health and safety law, care and employment legislation as well as guidance from the Government and the CQC.
It is crucial for employers to consider how they should address the impact of COVID-19 on staff morale and employee relations, especially as the sector has been one of the most affected. Despite all that has been done so far, employees will be and will continue to nervous about being at work. They will have a lot of questions and concerns; not just about themselves but about the risks to their families. They will want to know that they, and their families, are safe and will not be at risk either at work or at home.
This is a time where employers really do need to ensure that employees are on board, engaged and able to trust them. This requires an awareness of each individual’s personal circumstances, acknowledgment of their concerns, genuine consideration of the issues that are causing concern, close liaison with health and safety advisors and proactive discussions with employees, whether individually or via consultation forums or Trade Unions.
As such, employers need to be aware of:
Employment law protections around health and safety
There are specific protections for those who raise health and safety concerns or who decline to work on grounds that there are serious and imminent health and safety issues. This applies not only to issues within the workplace but also to getting to and from work
PUBLIC INTEREST DISCLOSURE – “WHISTLEBLOWING”
Raising an issue where the employee has a reasonable belief that health and safety or other legal obligations have been breached and that the disclosure is in the public interest gives the employees protec- tion from retaliatory action. In the care environment staff should be encouraged to raise concerns, but be conscious of their rights when you investigate. Allied to that the issues may appear as grievances or just a reference in an email – not everything is headed “Whistleblowing”: WORKING TIME REGULATIONS
COVID-19 has created many instances of employees who either have to take time off to quarantine or to get better. This has meant that employers are facing pressure to rely on less members of staff to cover shifts which may have an effect on working time regulations. Employers will need to ensure that rest breaks, weekly breaks and holiday entitlements are observed.
Staff retention is going to be a key issue. Employers are always at risk of staff moving on at short notice. In the current environment we need to avoid increasing that risk by giving anyone the right to claim that obligations around “mutual trust and confidence” are not being met. So remember, how people are treated and how their concerns are addressed contributes to that overall position.
Duties under health and safety legislation
Under UK health and safety law, employers have a duty to ensure – so far as reasonably practicable – that their employees and other people who might be affected by their business, are not exposed to risk to their health, safety or wellbeing from their activities. It is important to note that the duty applies to risk – there is no need for any actual harm for the duty to be breached – and that it applies to both employees and anyone affected by the employers’ business, for example residents and service users.
It is not legally possible to contract out of this duty. Breach is a crimi- nal offence for which the employer faces an unlimited and uninsured fine.
Employers are also legally required to conduct risk assessments to identify hazards and then put in place control measures to eliminate, if not reduce as much as possible, the risks identified. Those risk assess- ments need to be location, activity and person specific and they need to be kept under review. They need to be prepared in consultation with employees and in accordance with Government, and care sector best practice and the results should be published. Steps should be taken to ensure that employees understand and are equipped to work in accor- dance with the control measures and compliance should be audited.
None of this is new law. COVID-19 is a new risk to which existing systems should be applied.