Does an employer’s duty of care extend to commuting?

Helen Farr explains whether organisations have a legal obligation to ensure their staff remain safe during their journeys to and from work

Now that more businesses are asking employees to return to the workplace, many staff are refusing to do so due to concerns about contracting Covid-19 on their commute. Does an employer's duty of care extend to the daily commute? And in practice, how should employers deal with staff refusing to travel to the workplace?

Employers are required to undertake a Covid-19 risk assessment before reopening the workplace. This flows from the general statutory duties that all employers must provide a safe place of work for staff and to ensure that the health and safety of anyone accessing the place of business is not compromised. The key purpose of the Covid-19 risk assessment is to ensure that the danger of transmitting the virus is reduced as far as possible in the workplace.

Most staff feel comforted by the steps their employer is taking in the workplace to reduce the risks of transmission of Covid-19. But many are concerned about the risks they face when using public transport. 

Under existing health and safety legislation, the duties that employers have to ensure the health, safety and welfare of staff, apply both to the workplace or situations where the employee is acting in the course of employment. In most cases, these duties will not apply to risks faced when the employee travels to and from work.

The most relevant legal obligation that could apply to the daily commute is the statutory duty not to subject employees to a detriment or to dismiss them for taking action because of a serious and imminent danger they believe they face to their health and safety. The test is met if the employee's belief that s/he faces a serious and imminent danger is reasonable.

Employees who can fall within the protection of this duty have the right to stay at home on full pay. At least, that is the implication, since “detriment” would ordinarily cover loss of pay. Although it is unclear whether the statutory duty was envisaged to cover dangers posed by an employee's commute, there may be scope for arguing that an employee who stays at home because of travel concerns should be paid. 

Litigation is likely on this issue, but the outcome may not be known before employers need to make decisions about how best to manage these risks. Practical points for employers to consider include:

  • Engage with employees on how they propose to travel to work and ask them to highlight any issues. Many employers are using surveys to understand these issues.
  • If staff can work from home, ask only those employees who are happy and willing to attend the workplace to do so. The ideal would be to delay asking public transport users to return to work for as long as possible to mitigate against the risk of whether employer's duties extend to the daily commute.
  • Many jobs can only be done in the workplace. For these employees, consider what other steps can be taken to help them travel to work by other means – possibly implementing a cycle to work scheme, improving facilities for those who cycle or jog to work. If possible, employees could work at a different site closer to home and easier to either walk or cycle to.
  • If public transport is the only option, employees could start or finish at different less busy times. Make sure employees understand the government guidance and the importance of wearing face coverings.

Employers must support their employees' mental health. Using public transport will be a source of anxiety for many employees. Others will feel worried about working alongside colleagues who have used public transport to travel to work. It is important to support people's mental health and ensure their concerns are addressed at this difficult time.

It is important that employers do address employees' concerns about using public transport when returning to work in the workplace. By doing so they can avoid legal risk and maintain good employee relations which is vital in these uncertain times.

Helen Farr is an employment partner at Taylor Wessing