What does coronavirus mean for health, safety and the GDPR?

17 Mar 2020 By Steven Harte

With up to a fifth of the UK’s workforce potentially absent from work as a result of Covid-19, Steven Harte outlines some key implications employers may not have considered

Home working considerations

While it is not possible for all employees to carry out their role from home, for many it is a real option that will allow businesses to continue to operate even if the physical workplace is closed. However, if organisations aren’t used to offering home working, there’s more to think about than simply checking your team has the right equipment. 

Health and safety legislation extends to home working, so a health and safety risk assessment should be carried out, although the scope of such an assessment will depend on the type of work being undertaken and how long home working will be needed. 

Perhaps more pressing is the requirement that adequate measures are in place to comply with GDPR legislation. This will apply to both hard copy personal data and electronic data. Particular areas of risk include employees using insecure networks, personal desktop computers, laptops and other devices, and personal or insecure email addresses. Employers may wish to review their current IT, home working and ‘bring your own device’ policies and update them as appropriate.

GDPR obligations – not just for data 

An employer’s GDPR obligation extends beyond the use of data. In the unfortunate event that an employee contracts coronavirus, or is suspected of being infected, the temptation will be for the employer to announce this fact to the workforce to identify anyone else who may be infected. However, care needs to be taken not to fall foul of the GDPR rules, particularly as data relating to health is one of the special categories of personal data that benefits from additional protection. 

Employers should consider if there is a way to alert employees to the risk of infection and to identify those individuals who could have come into close contact with the infected individual, without disclosing the identity of the individual themselves. In the event that it is felt necessary to disclose the identity of the individual, legal advice should be taken before doing so. 

In many instances, consent should be sought from the individual; however, this is not always necessary or appropriate, and will depend on the individual circumstances.

Health and safety – a disciplinary matter?

Employers and employees have a joint responsibility to promote health and safety in the workplace. Most employers will be introducing additional hygiene rules to help limit the impact of coronavirus. But what about employees who flout the new hygiene rules?

Businesses should deal with these informally in the first instance, explaining the importance of complying with the rules and strongly encouraging employees to do so. Additional training or guidance may be appropriate and should be offered if so. If that approach fails, employers have the right to instruct employees to follow the rules and, if they fail to do so, they will be dealt with under the company’s disciplinary procedure. Repeated failure may face disciplinary action that may result in formal warnings, which could ultimately result in dismissal if there is no change in behaviour. 

It might seem draconian, but it is important employers treat employees consistently in enforcing such rules. A failure to do so may expose them to claims of discrimination. Businesses should also be mindful not to discriminate against disabled employees. If an employee claims they are unable to follow the hygiene rules as a result of a physical or mental condition, employers should consider if any reasonable adjustments can be made to the rules, without compromising the health and safety of other employees.

HR professionals will be at the frontline of organisations’ efforts to navigate the weeks and months ahead. Keeping legal considerations like these front of mind will be important in protecting their company as they work hard to protect their teams. 

Steven Harte is an associate at Weightmans

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