What firms need to consider as employees return to the workplace

Fiona Hamor explains how recent tribunal rulings could teach employers about they what should and should not do as staff go back to offices

Commuting concerns

Accattatis v Fortuna Group (London) raised an interesting question about potential concerns around commuting on public transport and working in the office during the pandemic. In this case, the claimant requested on several occasions to work from home or be placed on furlough because of those concerns, which were all denied due to the nature of the business – it sells and distributes PPE. 

Following a final request, the claimant was dismissed and subsequently brought a claim for automatic unfair dismissal on the basis he’d been relieved of his duties for taking steps to protect himself from immediate danger arising from Covid-19. 

The claim was dismissed by the employment tribunal because there were other options offered to the claimant including unpaid leave or taking annual leave 

Nonetheless, it’s clear that in the early stages of the pandemic, tribunals were ready to accept the argument around a perceived threat of serious and imminent danger, either because of the nature of the workplace or because of the need to travel or commute. Tribunals also recognised that it might be reasonable for employees to take steps to protect third parties, such as family members. 

Whether this will continue to be the case is debatable. However, in areas of the country where infection and/or hospitalisation rates remain high, it’s possible that a tribunal may rule in favour of employees who have concerns about their safety when returning to the workplace and this is something employers need to keep in mind over the coming months.

Raising concerns about a lack of Covid-secure workplace measures

Gibson v Lothian Leisure centred on concerns about a lack of PPE and other Covid-secure workplace precautions. The tribunal found in favour of the claimant, who reasonably believed there was serious and imminent danger, leading him to raise concerns about the lack of PPE.

While face coverings are no longer mandatory in many settings, the case highlights the continuing need for employers to carry out Covid-19 risk assessments before employees are required to come back into the workplace, and to update the relevant policies and procedures regularly. Where a risk assessment concludes that the workplace is safe, it will be much more difficult for an employee to bring a successful claim.

Enforcing changes to employment contracts

Khatun v Winn Solicitors Ltd followed the dismissal of a solicitor for refusing to agree to changes in salary and hours – the changes which were proposed in response to the pandemic. The law firm was judged to have “got it all wrong” by the tribunal in the way it handled the process, which ultimately led to unfair dismissal.

As more employees seek greater flexibility and employers continue to adapt to the ongoing pressures of Covid-19, the case is a useful reminder that the pandemic will not be sufficient to allow employers to ride roughshod over the existing legal requirements for changing employees’ terms and conditions. This requires adequate consultation and a fair consideration of all the alternatives.

The new workplace

The working environment has had to adapt over the last 18 months and, as people start to return on a full or part-time basis, further adjustments will need to be made to accommodate the government’s changing emphasis from rules and regulations to guidance. Many employers will welcome the move towards increased freedom; however, the change in approach now means that businesses have to make more of their own decisions about how to manage Covid risks in the workplace. 

The government has produced six sector specific guides, which are all subject to review if the infection and/or hospitalisation rates increase. These include social distancing, face coverings, self-isolation, and working from home. 

Importantly, the government has outlined nine priority actions around workplace safety. These are:

  • Employers must undertake health and safety assessments.
  • Ensuring staff and visitors regularly clean their hands and that surfaces are kept clean.
  • Making sure that indoor spaces are properly ventilated.
  • Ensuring that any individual who is displaying symptoms of Covid-19 does not attend the workplace. 
  • Where practical, reducing unnecessary contact between workers. 
  • Keeping the workplace clean.
  • Using PPE where necessary, including face coverings in enclosed spaces. 
  • Training and awareness on health and safety.
  • The use of rapid flow tests. 

Covid has undoubtedly left an indelible mark on the workplace and businesses have had to adjust to new ways of operating. The return of workers over the coming months will continue to pose unprecedented challenges to employers. The need to understand, assess and act on potential risk is clear, if businesses are to remain operational and to protect against any potential future claims. 

Fiona Hamor is employment partner at law firm Pannone Corporate