Legal

Avoiding disputes arising from Covid-19

8 Sep 2020 By Layla Barke-Jones

Layla Barke-Jones outlines how businesses can reduce the risk of grievances, from completing a thorough risk assessment to prioritising employee engagement   

What disputes may arise in the workplace?

There are several disputes that could arise if businesses do not take the time to carefully plan and prepare, which include: 

  • HSE intervention;
  • civil claims for personal injury (physical and psychological);
  • discrimination claims;
  • redundancy claims; and
  • refusal to return to the workplace.
  • So how can businesses prepare to face these disputes?

Complete a thorough risk assessment

Businesses need to undertake and implement a thorough Covid-19 risk assessment and be able to show that it was completed by a competent person who is considered the most up to date with government guidance. 

It needs to cover all the work patterns that are currently being used (including shift work, working from home, working at different sites or within confined areas). It should also cover psychological risk factors, especially stress, as well as the physical risk of spreading the virus within the workplace.

It is an offence not to consult employees or their representatives on the risk assessment and by doing so it will also help avoid a dispute arising later on.

Ensure there is an audit trail

There should be an audit trail showing the communication of the measures put in place, any signage that is used and the advice given to employees and visitors, as well as any disciplinary action taken if these measures are not observed. 

As the risk assessment will need reviewing and updating regularly to deal with the fast-changing advice, all editions of the risk assessment should be saved in a single place and easily accessed if an inspector comes knocking. It would be desirable to record the basis for the decisions taken (particularly with reference to current guidance) given that personal injury claims may be brought up to three years later.

With many employees working from home there may be unusual document storage; this should be agreed beforehand and updated as soon as possible.

Prioritise employee engagement

Employee engagement will be crucial to avoiding disputes – employers need to consult with their staff every step of the way. All employees will have had their daily work experience affected by the current pandemic, but this will by no means be consistent across the board. Workplace changes, personal circumstances and individual perception will mean no two employees have had the same experience – the only way to assess the impact and the measures required is to consult with staff. The plus side is this will enhance cohesion and a sense of wellbeing among the workforce, which reduces the risk of employee disputes arising later.

Decisions should be made with employees wherever possible and remember the golden rule to always follow a fair process. Do not make decisions based on protected characteristics and consider whether the measures in place disadvantage any particular groups.

Establish a response team

Another good practice is to establish a response team for any Covid-19 outbreak (this will also serve for other health and safety incidents). The response team should include heads of business, a contact at the insurer/broker, a solicitor and someone responsible for press relations. Having a solicitor involved to give advice at the early stage may enable certain documents to be protected from disclosure.

The response team should identify a person to act as the single point of contact to deal with third parties such as the press, local authority, insurers, solicitors and others from outside of the organisation. Some thought needs to go into this selection as it requires good organisational and communication skills – it is best to identify who this will be in planning rather than in the midst of a crisis.

Layla Barke-Jones is a dispute resolution and insolvency senior associate at Aaron & Partners

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