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HRizon May 2020 hilldickinson.com
EMPLOYMENT
Welcome to our May In the European Court of Justice (ECJ):
HRizon employment Where an employer in a radio interview makes
discriminatory remarks, what are the grounds for a
newsletter, where we discrimination claim? An employer must not unlawfully
discriminate when selecting whom to offer employment.
consider various issues Further, if a job advertisement is discriminatory, the
Equality and Human Rights Commission can investigate
employers are facing and take enforcement action. However, is it lawful to
make verbal comments that demonstrate an intention to
related to Coronavirus discriminate? This issue has recently been considered by
the ECJ. The claim arose from comments made, during
and the return to work, a radio interview by a senior lawyer of an Italian law firm,
stating that he would not hire a homosexual person to
and highlight recent work for his firm. The law firm were not actively recruiting
any roles at the time, nor did any individual job applicant
employment law cases claim that they had been discriminated against. However,
an association representing the rights of LGBTI individuals
and HR news from the brought a discrimination claim and sought damages. An
Italian court upheld the claim and ordered the lawyer to
last month. pay damages of €10,000 to the association. After an initial
appeal failed, the lawyer appealed to the Italian Supreme
Court, who referred the issue to the ECJ. The ECJ held:
hilldickinson.com
• the concept of ‘conditions for access to employment Acas COT3 settlement, relieved the former employer
… or to occupation’ in the Equal Treatment Directive from paying the sums due under the agreement. The
must be interpreted as covering statements made by employee, S, had brought employment tribunal claims
a person during an audio-visual programme, that the against his former employer. With the assistance of Acas,
person would never recruit persons of a certain sexual a settlement was negotiated and recorded on a COT3
orientation to his or her undertaking, or wish to use the form. The settlement provided that the employer would
services of such persons. Provided that the link between pay S the sum of £15,500, via 47 weekly instalments, in full
those statements and the conditions for access to and final settlement of S’s claims. Amongst other matters,
employment or occupation within that undertaking is the COT3 agreement included a confidentiality clause,
not hypothetical, such comments can be a breach of the which required both parties to keep the terms of the
Equal Treatment Directive, even though no recruitment agreement strictly confidential. After it had paid £2,960
procedure had been opened, nor was planned. in instalments, the employer stopped making the weekly
payments. S issued proceedings in the county court for
• In considering whether such comments do amount to a
the remaining sums due. The employer sought to defend
breach, the following factors are relevant:
those proceedings, relying on an alleged breach of the
- the context of the statements, whether they were confidentiality clause by S, which it argued relieved it of
public or private, or were broadcast to the public, the obligation to make any further payments. The County
whether on traditional or social media; Court held that S had breached the confidentiality clause
- the status of the person making the remarks must be by mentioning the settlement (and its terms) to a former
a potential employer or capable of having a decisive colleague. However, the confidentiality clause was not
influence on recruitment policy or decisions; and drafted as a ‘condition’ of the contract, any breach of
which would automatically give the other party a right
- the remarks must relate to the conditions for access to end its contractual obligations. The breach was not
to employment with the employer concerned and a repudiatory breach because it did not go to the root
establish an intention to discriminate contrary to the of the contract. Nor did the breach mean that S had
directive; and renounced the contract, such that a reasonable observer
• An association whose objective is the judicial protection would think that S no longer regarded himself as being
of persons with a certain sexual orientation and the bound by it. The employer was therefore obligated to
promotion of the culture and respect for the rights of pay the instalments, despite S’s breach. The High Court
that category of persons, automatically (on account dismissed the employer’s appeal and upheld the county
of that objective and irrespective of whether it is a court decision. Confidentiality clauses are common in
for-profit association) has standing to bring legal agreements to settle employment claims, and unless the
proceedings for the enforcement of obligations under agreement expressly made such a clause a ‘condition’
the Equal Treatment Directive. They can obtain damages of payment, such a clause will not go to the root of the
in circumstances that are capable of constituting contract. The employer could have chosen to make
discrimination against that category of persons, if it is compliance with the confidentiality clause a ‘condition’ of
not possible to identify an injured party. payment, but had failed to do so. Further, the breach of the
(NH v Associazione Avvocatura per i diritti LGBTI) confidentiality clause by S was not repudiatory, because
it was not likely to (and had not) caused the employer
any commercial embarrassment, and the risk of copy-
cat unmeritorious claims by colleagues was remote. The
In the High Court: employer remained liable to pay the
A reminder of the importance of a well-drafted outstanding sums due.
settlement: Settlement agreements (and to a lesser (Duchy Farm Kennels Ltd v Steels [2020] EWHC 1208).
extent Acas COT3 settlements) must comply with certain
minimum legal standards, in order to be binding upon
the employee. However, a well-drafted settlement will go In the news:
beyond those minimum requirements and include other
clauses designed to offer the employer added protection. Off-payroll working: The Government have indicated that
For example, settlement agreements commonly place they are working towards an implementation date of April
confidentiality obligations upon the former employee. 2021 and have proposed further technical amendments to
The High Court recently considered whether breach the draft regime.
of a confidentiality clause, which was contained in an
Coronavirus: how can we prepare
our business for life after lockdown?
Four months ago, nobody had even heard How can we prepare our Will changes to the size and
of COVID-19 (coronavirus), yet in that
short space of time, the virus has utterly
business for a safe return to composition of your workforce
transformed the employment landscape work? be needed?
in the UK. Like in any crisis, there have ‘If you fail to prepare, you are preparing to Many businesses will find that lockdown,
been some winners and some losers. fail’ (Benjamin Franklin). Employers would and the post-lockdown economic shock,
For some, business is booming and they be wise to heed these words of wisdom will have changed their business needs.
are actively recruiting additional staff to and use this time to start to prepare their It may not necessarily make good
meet extra demand, but for the majority businesses for life after lockdown. Start business sense to re-start the business
of businesses the enforced lockdown and thinking now about how you can adjust after lockdown is released, with the same
social distancing measures have had a your old ways of working to make the number of staff, doing the jobs they did
devastating economic impact. Estimates working environment safer for your staff, before the pandemic. Business survival
suggest that up to 30% of the UK visitors and customers. Employers have may make it necessary to consider re-
workforce has been furloughed and many a number of common law and statutory shaping the workforce via restructures
more are currently working from home, duties in relation to health and safety and/or redundancies. To reduce the risk
whilst simultaneously needing to look after at work and the starting point for any of legal claims, these processes must be
children due to the closure of schools and employer will be to familiarise itself with handled fairly and within existing legal
childcare providers. current HSE guidance. boundaries. Consider the impact on staff
Thankfully, there are tentative signs that morale if they have already had to take a
Consider how the usual ways of working
the UK has reached its peak of infections pay cut with a view to protecting jobs, only
can be adjusted to allow for greater
and that the infection curve is starting to find that job losses are in fact inevitable.
social distancing and additional hygiene
to flatten. There are also signs that the measures. This could include, for example, For those staff being retained, consider
conversation is starting to switch towards increased spacing within the workplace, whether they can continue in their current
how the UK can begin to lift the lockdown greater use of disposables instead of roles. It may be necessary or desirable
restrictions and get the economy working reusables, additional cleaning regimes, use to transfer some of them to new duties
again. It is safe to assume that lockdown of appropriate PPE, staggering working (which may involve some retraining). For
measures will not be lifted overnight; hours, dividing staff into ‘groups’ or example:
instead, the restrictions will be lifted in ‘shifts’ which do not mix with other staff,
a managed way. It seems probable that • Should staff who have had confirmed
and reducing the number of staff and
lower-risk parts of the economy will be coronavirus (and who may therefore
visitors on your premises at any one time.
allowed to get back to work first. Higher have some degree of natural immunity
Consulting with staff and managers about
risk sectors, including hospitality and from re-infection) be transferred to
the proposed measures may highlight
leisure, are likely to see lockdown continue customer-facing duties?
areas of concern and/or solutions, which
for a while yet, and then see a gradual you have not identified in your risk • Can you protect the most vulnerable
release of restrictions. assessments. Staff and managers will need staff by moving them away from
When employers are given the green light to be retrained in the new protocols and frontline duties to a role in which they
to resume operations, they will still face procedures. face a lower risk of infection?
many challenges around deciding how Consider if any changes need to be made • To the extent that it is practicable to do
to safely operate and reintegrate their to your business premises to reduce hot so, should staff continue working from
workforce. In this article, we consider some spots of contact, which may increase the home wherever possible?
of the main issues employers are likely to risk of spreading the virus. For example,
face, and how they can prepare for life Amazon was fined €1 million a day, in part
after lockdown. for not removing a revolving door, which
posed a gross risk of contamination to
its staff. Since the virus can spread via
microscopic particles in the air, consider if
ventilation is adequate and the installation
of sneeze-guards in high-risk areas.
How can we reintegrate staff What can we do to help staff How far can you go to monitor
after lockdown? with their mental health? and control the health of your
This may turn out to be more of a Many staff will have seen their mental employees?
challenge than many employers think. health suffer during the last few months. Coronavirus testing in the UK is currently
The starting point should be to consider Some staff may have faced the loss of limited by the government. Antibody
staffing needs to get the workplace ready loved ones and may need additional testing is not yet widely available (and
for full re-opening, both in terms of staff support to manage their grief. The there are some concerns about its
numbers and in terms of skill sets. This may isolation during lockdown may have reliability since nobody can yet be certain
mean that some staff are brought back had a damaging impact on the mental that having had the virus protects you
from furlough leave earlier than others wellbeing of others, leaving them lonely, from catching it again in the future). A
and this selection should be handled fairly anxious or depressed. Amongst staff who vaccine is undergoing trials but, even if
and be capable of objective justification. have continued to work, managing the it proves successful, it will take up to 18
Staff being asked to return from furlough challenges of home schooling whilst also months to be widely available. Under
leave should be given sufficient notice to working may have been exhausting and current laws, an employer cannot force an
prepare (and account should be taken of left them very stressed out. Employers employee to undergo a medical procedure
any ongoing childcare issues they may should consider how robust their (e.g. coronavirus test or vaccination)
have due to the closure of schools and support mechanisms are to deal with without their consent, and it is unlikely that
nurseries). the challenges these issues may bring refusal of consent would be a fair reason
and improve them where possible. For for dismissal. As such, the approach taken
If some staff have been working full-time,
example: by employers to encourage such measures
whilst others have been on furlough leave,
there may be tensions amongst staff upon • Do staff have access to confidential will need to be more carrot, and less stick.
a return to work. Staff who have continued counselling?
to work may not be keen on relinquishing How long should we rely on
new duties and responsibilities they have • Does the business have mental health staff forbearance in supporting
first-aiders?
undertaken. Those who have been on the business?
furlough leave may feel marginalised upon Some staff may be very afraid to return
their return to work, as if their ‘place’ in In addition to utilising furlough leave
to normality – to travel on busy public
the workforce is under threat. Tempers and taking advantage of other business
transport, or to work alongside colleagues,
amongst staff may quickly fray. Managers support measures, many businesses will
or with customers. It is probable that
should be prepared to mediate and have introduced measures that rely on the
employers may find that some staff
resolve these tensions, through agreement forbearance of staff (e.g. temporary pay
go AWOL after being recalled to work,
wherever possible. The starting point cuts, postponed salary reviews). As the
due to fears for their safety. It will be
is that employees remain employed in lockdown is lifted, and staff are asked to
very important to communicate to staff
their previous positions, so any change return to a more normal pattern of work,
the steps taken to reduce the risk of
to this on return will require a degree of they may be increasingly likely to lose
coronavirus transmission in the workplace
discussion and consultation with staff and, patience and challenge such measures.
to alleviate their fears. However, if staff
in some circumstances, changes to the Therefore, they should be kept under
are still refusing to return to work, then
contract may be required. constant review and not extended further
a fair disciplinary process will need to be
than necessary. The terms under which
Staff who have been able to work remotely followed to deal with their absence.
such measure were agreed with staff
may not be keen on giving up that should be honoured, and consultation
flexibility and their newfound freedom. should take place if they need to be
An increase in flexible working requests extended or altered.
seems highly likely and employers may
find it harder than ever to justify rejecting To sum up, employers may find that
such requests, in circumstances where reintegrating their workforce and
agile working has proven to be successful adjusting to the ‘new normal’ poses
over recent months. Perhaps an increase significant challenges. However, with some
in remote working and flexibility will be forethought and preparation, the impact
one long-lasting benefit to come from this of these challenges can be minimised and
pandemic. dealt with appropriately.
Businesses will also need to restart For further updates and other articles
processes that have previously been discussing the impact of the coronavirus
put on hold such as disciplinary and please view our coronavirus hub.
performance, and advice should be sought
in respect of absence and how to treat
those absences related to coronavirus.
Coronavirus: will employers see
an increase in flexible working
requests when lockdown ends?
Within the space of a single week running • state that the application is being made Why might employers see an
from 16 to 23 March, the prime minister, under the statutory right to request
flexible working;
increase in flexible working
Boris Johnson, urged anyone who
could do so to work from home, closed
requests after lockdown ends?
• specify the proposed flexible working
schools, nurseries and many non-essential arrangement and the date on which the The right to request flexible working was
workplaces, and imposed severe lockdown employee would like it to start; first introduced, by the Blair government,
restrictions, all with the aim of minimising in April 2003. However, very slow
• explain what effect, if any, the employee progress has been made over the last 17
the spread of coronavirus. That week thinks the proposed change would years. While some employers have fully
arguably changed the British working have on the employer and how, in their embraced agile working, the only ‘flexible’
landscape beyond recognition. Millions opinion, it can be dealt with; and option many others would consider was
of workers have had to adjust to working traditional part-time working.
• confirm whether a previous application
from home. Many others saw adjustments
has been made to that employer and, if The guidance that those who can
to their working patterns to reduce their so, when. work from home must do so has given
risk. As workers have adjusted to their new
Employers must deal with a flexible employers who might otherwise have
ways of working, many may not be keen
working request in a reasonable manner been reluctant to allow widespread
to relinquish their newfound flexibility. homeworking no alternative but to
and give reasonable consideration to
As a result, employers may see a big embrace it. Millions of workers have had to
the requested flexible working practices.
increase in flexible working requests going Requests should generally be dealt with adjust to working from home. Businesses
forward, especially now that some of the within three months. Employers are only have been forced to invest in remote
lockdown restrictions have been lifted and permitted to reject a request on specified working technology, and to quickly adopt
employees who are unable to work from business grounds, namely: new methods of working to ensure staff
home are being actively encouraged to get the support and supervision they need.
• burden of additional costs; Many managers have found that their
go to work. This article considers the rules
• inability to reorganise work among teams have overcome any initial challenges
regarding flexible working requests and
existing staff; and are in fact coping very well during
some of the key issues employers may face
lockdown.
when dealing with those requests. • inability to recruit additional staff;
As workers have adjusted to their new
What does the law say about • detrimental impact on quality; ways of working, many may not be keen
making a flexible working • detrimental impact on performance; to relinquish their newfound flexibility.
They may have seen major improvements
request? • detrimental effect on ability to meet in their work-life balance, as a result
Employees with 26 weeks’ continuous customer demand; of reducing the amount of time lost to
service have the statutory right to apply • insufficiency of work during the periods commuting. Some may have seen their
for flexible working. They do not need the employee proposes to work; or stress levels reduce and their mental
a specific reason for making such an wellbeing improve. This landscape means
application. One formal application can • planned structural changes. that employers are likely to see a big
be made each year. Employees can In addition to this statutory right to increase in flexible working requests after
request changes to the number of hours request flexible working, employees and the lockdown restrictions are lifted, with
they are required to work, the times they workers may make ‘informal’ requests to some employees keen to continue agile
are required to be on duty and/or to work flexibly (for example, by agreeing working.
the location of their work (for example, temporary flexible working arrangements
working from home). The application must directly with their line manager), or request
be in writing, dated, and must: reasonable adjustments to their working
conditions to remove disadvantages they
suffer because of a disability.
Even the recent shift in emphasis in the Was homeworking already on What about roles that cannot
guidance such that those who cannot work
from home are now actively encouraged
the increase? be done remotely or flexibly?
to go to work may result in an immediate It is true that over recent years there has There will always be some roles that
influx of flexible working requests. Parents been a gradual increase in homeworking. cannot be performed remotely because
of young children who cannot yet go to Recently published figures from the Office they require a physical presence in the
school or nursery, for example, may need of National Statistics (ONS) show that, of workplace. For others, customer demand
to ask for additional flexibility to help 32.6 million people in employment, around will require more staff to be available
them balance their work and childcare 5.1% (1.7 million workers) mainly worked at peak times, making flexible working
responsibilities. While these challenges from home in 2019, compared to 4.3% in hours a challenge to accommodate.
may be temporary in nature, some 2015. An even greater number of workers Businesses will continue to be able to rely
employees may see this an opportunity to said they worked some of their time from on the business reasons outlined above
seek more permanent changes to the way home (for example, around 20-25% of to reject flexible working requests from
they work. professionals, directors and managers said staff working in these roles. However, even
they had worked from home in the week in industries where the bulk of the work
Why might employers find it before the survey). It seems highly likely cannot be done remotely and other forms
harder to reject flexible working that one lasting impact of the coronavirus of flexibility are challenging to implement
pandemic may be the acceleration of this (such as retail, manufacturing, hospitality
requests after lockdown is and the care sector), there are likely to
trend for homeworking.
lifted? be some roles which are suitable for agile
As we explained above, employers can What are the positive benefits working.
only reject a flexible working request homeworking and flexible Perhaps one legacy of the coronavirus
on specified business grounds. Many working can bring? pandemic will be an increased willingness
businesses are likely to find it increasingly by businesses to consider flexible working
difficult to rely on these business grounds Homeworking and other forms of flexible
as a viable option. Some employers are
to justify saying no to flexible working. working are increasing in popularity with
likely to move beyond merely tolerating
How can a business that has invested in workers. Research published by HSBC
agile working, towards actively embracing
remote working technology rely on the in 2017 found that 89% of employees
and encouraging it because of the many
burden of additional costs to reject a surveyed considered flexible working to
benefits it can bring. It is possible that we
request to work part of the week from be a key motivator, compared to 77% who
will look back at this time as being a major
home? How can a business that has cited financial incentives. Working flexibly
catalyst for change.
successfully operated remotely for the last can lead to major improvements in an
few months argue that remote working individual’s work-life balance, allow them
will have a detrimental impact on quality, to cut out hours wasted to commuting and
performance, or the ability to meet make childcare demands easier to juggle.
customer demand? A 2019 study found that 39% currently
working flexibly notice an improvement in
The practical reality is that the recent giant their mental health; 43% of people whose
leap towards widespread homeworking employers do not offer flexible working
has, in many cases, proven more successful feel it would positively impact their mental
than some business leaders imagined. The health if they were able to do so.
perspectives of many leaders, customers
and employees have changed. They are Managed well, agile working can also
embracing alternative ways of work, and bring great benefits for the employer.
managers have found that employees can Many employees find they produce more
be trusted to do their work without micro- and better quality work in less time if they
supervision. Indeed, many businesses find work from home where there are fewer
that productivity increases when people distractions. HSBC’s 2017 study reported
work remotely. One business leader was that 81% of workers believe working
quoted as saying: ‘The realities of working remotely improved their productivity.
remotely have destroyed many of the Agile working can also greatly reduce the
myths’. amount of physical space a business needs
(thus decreasing overheads).
Coronavirus: What are the health
and safety obligations of employers
when back-to-work planning?
On Monday 11th May, the Government
published ‘Our plan to rebuild: The
UK Government’s COVID-19 recovery
strategy’, which has been dubbed its
roadmap out of lockdown. This details
the Government’s plans to lift the current
English lockdown restrictions, in gradual
phases, over the course of May to July
2020. This was followed by the publication
of non-statutory sector specific guidance.
As a result, many employers are currently
contemplating what they need to do to
improve the safety in their workplaces,
to make them ‘COVID-19 Secure’, so that
their staff can return to work. This article
explores the basic health and safety
obligations of employers, and considers
some of the most frequently asked
questions we receive from employers
planning for a return to work.
What are an employer’s duties Should every employer prepare Do we have a duty to eliminate
regarding the health and safety a return to work risk assessment or control every risk posed by
of employees? taking account of coronavirus? coronavirus?
All employers have a legal duty to ensure, Yes, it is the duty of every employer to take The duty of every employer is to take
so far as is reasonably practicable, the ‘reasonably practicable’ steps to eliminate ‘reasonably practicable’ steps to eliminate
health, safety and welfare of all of their identified risks. This means that, as a identified risks. What is ‘reasonably
employees. The duty, which includes minimum, an employer must: practicable’ will be a balancing act, taking
the provision of information, instruction, into account:
• Identify any hazards: identify what could
training and supervision, extends to risks
cause injury or illness in the workplace • The degree of risk in a particular job or
arising from:
workplace
• Assess the risk: decide how likely it is
• The nature of the work
that someone could be harmed and how • The time, trouble, cost and physical
• How the employer conducts its business seriously difficulty of taking measures to avoid or
reduce that risk
• Any supervision, training, instruction (or • Eliminate or control the risk: take action
lack thereof) to eliminate the hazard, or if this is not Any perceived or reported failure to
possible, to control the risk. take appropriate steps can give rise to
• The plant, equipment, materials and
investigation, interview and possibly
substances used Although it is not compulsory for micro-
prosecution by HSE or the appropriate
employers, most employers should record
• The condition of the premises local authority. Safety investigations can
these steps in a written risk assessment.
be time consuming and uncomfortable,
• The provision of welfare facilities Some employers may wish to create
often highlighting diverse and unrelated
an entirely new risk assessment, whilst
In addition, various regulations impose concerns that lead to further questions.
others may prefer to update an existing
specific statutory duties in respect of the Safety prosecutions set a high bar; it is for
risk assessment to take account of the
health and safety of specific workers, and/ the employer to prove that they have taken
new risks that may arise from exposure
or in specified situations. These include, but all practicable steps, almost a case of guilty
to coronavirus within the workplace. In
are not limited to: until proven innocent.
addition, the Government is encouraging
• Women of childbearing age, pregnant employers to: A thorough and well thought out risk
women, and new mothers assessment provides a sounds basis from
• Share the results of the risk assessment
which you can respond to an investigation
• Young people (under 18s) with the employees
and defend any prosecution that might
As an occupier of premises, an employer • Consider publishing the risk assessment result.
also has a statutory duty to ensure the on the employer’s website (the
safety of employees and visitors on their Government expect all businesses with Should we refresh our health
premises. over 50 employees to do so) and safety information and
• Display a COVID-19 Secure poster training because of coronavirus?
Yes, employers have a duty to provide
information and training to employees.
This must be kept up to date, so that it
reflects any changes in the risk profile
or working practices (for example, when
existing employees are exposed to new
or increased risks, such as coming into
contact with coronavirus at work). The
training must be provided free of charge,
during working hours, and should take
into account the specific vulnerabilities of
particular employees.
Do we need to consult with staff Can we require staff to return to
when planning for their return work if they feel it is unsafe to
to work? do so?
Yes, every employer has the legal duty to • The answer to this depends on the
consult with employees regarding health circumstances, including:
and safety matters. What is required
• The degree of risk that individual
depends on whether the particular
employee faces (for example, whether
workplace is:
they are required to shield themselves
• Unionised: in which case the employer from coronavirus exposure)
must consult with trade union safety
• The amount of consultation and
representatives
information the employer has had with
• Non-unionised: in which case the its employees and workers in planning
employer can consult with either elected the safe return to work
employee safety representatives, or
• Whether it is in fact unsafe to return,
directly with the employees
or whether the employee is justified in
The consultation must take place in good reasonably believing that it is unsafe to
time, on matters relating to the employee’s do so
health and safety at work, including but not
From the employer’s perspective, requiring
limited to:
an employee to return to work might be
• The introduction of any measure at the seen as a reasonable workplace instruction.
work place that may substantially affect However, in certain circumstances, an
the health and safety of those employees employer’s staff may have the legal right
(e.g. any new procedures, equipment or to disobey that instruction and refuse
ways of working) to attend work, if they feel it is unsafe
to do so. In particular, employees are
• The information that employees must Do safety representatives have protected from detrimental treatment,
be given on the likely risks and dangers
any special protection? and any dismissal is automatically unfair
arising from their work, measures to
(irrespective of length of service), if this
reduce or get rid of these risks and what Yes, trade union safety representatives and
is motivated by certain health and safety
they should do if they have to deal with a elected employee safety representatives
grounds, including but not limited to, the
risk or danger have special protection afforded to them in
fact the employee:
respect of their duties. In particular:
With one exception, which is explored
• Brought health and safety concerns to
below, breach of these duties does not • They have the right to take a ‘reasonable’
the employer's attention
confer any stand-alone right of action in amount (as opposed to what is
civil proceedings. The HSE can investigate ‘necessary’) of paid time off to attend • Left, proposed to leave or refused to
and enforce any breach of the duty to training and fulfil their functions return to their workplace, believing there
consult (although in practise they rarely do to be serious and imminent danger
• The employer must provide the facilities
so). Further, a complaint by an employee
and any assistance reasonably required • Took, or was proposing to take,
that the employer has failed to consult
for health and safety representatives to appropriate steps (determined by
them about health and safety could,
carry out their role reference to all the circumstances,
depending on the circumstances, amount
including their knowledge, and the
to a protected disclosure for the purposes • They are granted special protection
facilities and advice available to them
of whistleblowing protection. If so, the from suffering detrimental treatment
at the time) to protect himself or other
employee will be protected from detriment, or being dismissed for reasons relating
persons from what he reasonably
and any dismissal motivated by that to their safety representative duties
believed to be serious and imminent
disclosure would be automatically unfair (and any dismissal motivated by their
danger.
(regardless of length of service), and any being a safety representative would be
compensation is unlimited and can include automatically unfair, regardless of length
an award for injury to feelings. of service)It is crucial to note that if the worker Do coronavirus cases have to be Can we require staff to take a
‘reasonably believes’ that there is any
serious or imminent danger, this means
reported under RIDDOR? coronavirus test?
that they can leave, refuse to return or take The question of which cases of coronavirus Testing has so far been restricted, but
appropriate steps to protect themselves have to be reported by the employer under it was announced on 18 May 2020 that
and others. This means that the employee’s RIDDOR is currently a disputed topic of anyone who is symptomatic is now able
knowledge of the health and safety risks debate. These complex issues are explored to have a coronavirus test. However, the
and the measures taken by the employer to in more detail in this article. employee must give their consent to
eradicate or control those risks, are relevant undertake a medical procedure, such as
in establishing whether the employee’s fear Can we ask employees to sign a coronavirus test, and it is unlikely that
amounts to a ‘reasonable belief’. When a waiver against injury or death the employment contract will grant the
considering an employee’s fear that a employer the right to insist on such testing.
workplace is unsafe, one factor may be the
from contracting coronavirus?
This means that the employer’s approach
disparity between the recommendations There is little value in asking an employee should be to encourage staff to engage in
of the World Health Organisation and the to sign such a waiver because various coronavirus testing when this is available,
UK Government’s guidance. We anticipate statutory provisions limit their effectiveness rather than trying to force them to do
a rise in litigation exploring some of these in the employment context. In particular: so. The introduction of work-place based
issues in the coming months, and the trade coronavirus testing programmes is very
• Any provision in an employment contract
unions are very likely to support such complex and specific advice should be
(or collateral agreement) is void in so far
claims if necessary. sought.
as it would have the effect of excluding
Further, the protection of the or limiting any liability of the employer, in If an employer intends to retain or process
whistleblowing legislation may be triggered respect of personal injuries caused to the records that relate to coronavirus testing,
if a worker makes a complaint to their employee by the negligence of persons there are also data protection implications
employer (or in some limited circumstances in common employment with them (such that need to be considered, because health
to a third party), believing this to be in the as a manager, supervisor or colleague) records are special category personal data,
public interest, that in their reasonable which means additional safeguards must
• An employer cannot, by reference to any
belief: be taken to protect it.
contract term or other notice, exclude
• There is a danger to the health and or restrict liability for death or personal Please contact your usual Hill Dickinson
safety of an individual injury, and the employee’s agreement contact or the author if you require
to, or awareness of, a risk is not of itself assistance planning a safe return to work or
• The employer has failed to comply
to be taken as indicating his voluntary have additional questions that we have not
with any legal obligation (for example,
acceptance of any risk covered in this article.
the duty to consult with employees
regarding health and safety). For further updates and other articles
discussing the impact of the coronavirus
If deemed whistleblowing, this would
please view our coronavirus hub.
in turn give the worker protection from
detriment, and render any dismissal
motivated by that protected disclosure an
automatically unfair dismissal (meaning
no qualifying period of service would
be required). The compensation for a
whistleblowing claim is unlimited, so the
consequences of making a mistake can be
costly.
Against this background, when faced with
an employee who is reluctant to return to
work due to health and safety fears, it is
best practice for an employer to open up
a constructive dialogue with the employee
to establish what their concerns are and
whether the employer has already taken (or
can take) steps to alleviate those concerns.
If an agreement can not be reached, then
specific advice should be sought.How can an employer support staff mental health and wellbeing during and after lockdown?
The UK was put into lockdown with Why might lockdown increase What legal duties do employers
the aim of controlling the spread the risk of mental health have to protect the mental
of COVID-19 (coronavirus) on 23
March 2020, but the instruction that
problems? health and wellbeing of
anyone who could work at home must In a recent research paper published employees?
work at home came a week earlier in the Lancet Psychiatry journal, an Employers have a general statutory
on 16 March. This means that many international group of psychiatrists duty to ensure the health and
workers who can do so, have now argued that the coronavirus pandemic safety of their workers (including
been working from home for almost is having a profound effect on their physical and mental health)
two months. Due to the closure peoples’ mental health. They note while at work as far as is reasonably
of schools on 20 March, many of that many of the direct consequences practicable. The employer’s duty is
those workers will also be trying to of the pandemic (e.g. bereavement, to take steps to eliminate identified
perform the stressful balancing act of unemployment and homelessness), risks if it is reasonably practicable to
simultaneously working and looking and the indirect consequences caused do so. What is reasonably practicable
after young children. Meanwhile, key by lockdown and social distancing will depend on the circumstances and
workers (e.g. medical and social care measures (e.g. increased social the degree of risk in a particular job or
professionals, teachers, civil servants, isolation and loneliness), are key risk workplace balanced against the time,
transport and utilities workers, and factors for mental health issues. They trouble, cost and physical difficulty of
workers involved in the manufacture go on to predict a likely increase in taking measures to avoid or reduce
and distribution of essential goods), the number of people suffering with that risk. The duty extends to risks
and others whose roles cannot be anxiety, depression, and engaging in arising from the workplace, how the
performed remotely, have continued harmful behaviours (such as alcohol employer conducts the undertaking,
to attend work. Many key workers, and substance misuse, gambling, supervision, training, instruction or
especially our frontline medics and domestic and child abuse, self-harm lack thereof, the plant, equipment,
care workers, are working in very and suicide). By way of comparison, materials and/or substances used,
challenging circumstances, under the 2003 SARS epidemic was and the condition of the premises and
immense emotional pressure, from associated with a 30% increase in provision of welfare facilities.
which there is very little respite. Some suicide in the over 65’s, and 29%
employees may have also seen their of healthcare workers experienced
families personally touched by the probable emotional distress.
virus, or suffered the loss of a loved Patients who survive severe and life
one. threatening cases of coronavirus are
at an increased risk of post-traumatic
This challenging landscape
stress disorder and depression.
means that the mental health and
wellbeing of staff has never been a
more important consideration for
employers. In this article, we consider
why there is an increased risk of
mental health problems caused by
coronavirus impacts and lockdown,
the legal duties of employers, and
some practical steps they can take
to support the mental health and
wellbeing of their staff during and
after lockdown.In addition, employers have a What can employers do to the first signs of mental health issues,
common law duty to take reasonable protect the mental health and and how to reduce and manage the
care of their employees’ safety and stress levels of the workers in their
failure to do so can lead to liability
wellbeing of staff during and team. As a rule of thumb, employees
for personal injury claims. What is after lockdown? tend to feel more in control of their
considered reasonable will depend on The starting point is to consider, when work environment and less stressed
the circumstances and what steps the making any operational decisions, when they are consulted with, and
employer took or should have taken the possible impact those decisions feel genuinely involved in the decision
to prevent the harm from arising, but may directly or indirectly have on making process. For example, if an
it will usually include providing a safe the mental health and wellbeing of employer is giving consideration to
place of work, safe tools/equipment staff. The Health and Safety Executive how to safely operate post lockdown
and a safe system of working. The encourages employers to adopt a whilst applying social distancing
size and the scope of the employer’s three-step approach: measures, then consulting with staff
operation, its resources and the may help to identify (perceived) risks
demands it faces are relevant in 1. Identify what could cause injury and/or possible solutions.
deciding what is reasonable. In or illness in the workplace (i.e. the
possible hazards) Employers should also consider
deciding whether an employer
whether any mental health support
has been negligent in causing an 2. Decide how likely it is that someone mechanisms provided for staff are
employee psychiatric injury, the could be harmed and how seriously adequate and how these can be
employer’s actions and omissions (i.e. consider the risk) improved upon. This could include, for
will be compared with those of a
3. Take action to eliminate the hazard, or example, the introduction of:
hypothetical reasonable employer and
if this is not possible, control the risk • Wellness action plans
consideration given to whether the
psychiatric injury, loss or damage was Workplace stress is a major risk factor • Mental health first aiders
reasonably foreseeable. An employer that all employers should take into
must take reasonable steps to protect consideration. There are six main • Access to support from a
the employee from an occurrence or areas of work design that can affect confidential counselling helpline
recurrence of the psychiatric illness the stress levels of staff: In the current lockdown, it is even
taking into account the magnitude of more important to consider utilising
• Demands: a worker may be unable to
the risk, the cost of preventing it and new technology that will make it
cope with the demands of their job
the effectiveness, if taken, of such easier to provide mental wellbeing
steps. • Control: a worker may be unable to support remotely. For example, we
control the way they do their work have heard positive reviews from
Finally, where a worker suffers a
physical or mental impairment that • Support: a worker may not receive employers about the ‘unmind’ web
has a substantial and long-term enough information and support platform and smartphone app.
negative effect on their ability to do from their manager
normal daily activities, they will be • Relationships: a worker may have
classed as a disabled person for the difficult relationships at work, and/
purposes of equality law. This in turn or be bullied by colleagues
means that the employer must not
unlawfully discriminate against them, • Role: a worker may not fully
and will have a positive duty to make understand their role and
reasonable adjustments to remove responsibilities
any substantial disadvantages they • Change: a worker may not feel
face in the workplace. engaged when a business is
undergoing change
Managers should be trained to spotWhat practical steps can Do you have any tips for Will we still need to worry
managers take to support the employees to help them about the mental health of staff
mental health of staff? protect their mental health and after lockdown is lifted?
Practical steps managers can take wellbeing? In short, yes. Taking steps to maintain
to support the mental health of staff The internet is full of free resources the mental health of staff will be
include: that can be used by employees to equally as important after lockdown
help protect their mental health and as it is during lockdown. In particular,
• Keep connected: this can be done
wellbeing during lockdown. Some of employers may encounter workers
by phone or via video calling and
the main recommendations include: who:
is even more important if staff are
working remotely • Keep connected: although it may • Are suffering from ‘coronaphobia’
not be possible to have physical and are terrified to return to work
• Encourage staff to remember to
switch off too: remind employees contact with those outside the • Have suffered post-traumatic
they are not expected to be at work immediate household, staying stress due to their own brush with
24/7 and to take some time for in touch with loved ones via coronavirus
exercise, rest and relaxation telephone, video calling or social
media can help combat loneliness • Have become accustomed to their
• Remind staff they are still part of a and isolation new routine, and do not want things
team: maintaining contact via video to return to how they were
calling can help prevent feelings of • Maintain a routine: having a routine
can be really beneficial for mental • Have suffered coronavirus-related
isolation and loneliness and help
wellbeing bereavements
maintain team morale
• Eat well and exercise: physical • Have had personal issues during
• Be supportive: encourage staff to
health has a major impact on mental lockdown, such as domestic
be honest about the issues they
health, so eating well and getting violence, relationship breakdown,
might be facing and help them
some daily exercise can really help and/or financial pressures
to work out practical solutions to
combat them improve mental wellbeing • Have suffered a serious and long
• Sleep is important: changes to daily term impact on their mental health
• Be honest: with staff about the
impacts coronavirus is having on routine can quickly lead to poor All of these individuals will require
the organisation, what you intend to sleeping habits, but sleep is really ongoing help and support from their
do to minimise those impacts and important in maintaining good managers and employer, if they are
how they might be affected by any mental health to overcome the mental health issues
plans • Do something you enjoy or learn a they have developed because of the
new skill: focusing your attention on coronavirus pandemic.
• Communicate clearly: make sure
any communications for staff are something else, which makes you For further updates and other
clear and easy to understand, and feel positive, can help to minimise articles discussing the impact of
make sure all managers are briefed the amount of time spent worrying the coronavirus please view our
in advance to answer any questions • Relax: relaxation techniques can coronavirus hub.
staff ask really help with feelings of anxiety
• Remind staff of the available • Minimise time watching news and
support: for example, who any on social media: too much of these
mental health first aiders are, how can lead to an increase in fear
to get help from HR, and how to and it is possible to quickly lose
access any confidential counselling perspective and increase anxiety
helpline levels
• Look out for the first signs of stress: • Speak out: it is normal to be
such as erratic behaviour, or a worried, scared and/or anxious,
sudden drop in performance but a problem shared is a problem
halved, so talk about any worries
with a trusted friend or supporterMeet
the
team
Sinead Mohan
Senior Associate,
Commercial Employment, Manchester
Name your three top movies Which 5 people (alive or dead)
of all time? would you invite to a dinner party
at your house?
Million Dollar Baby, Birdman, Pulp Fiction
This is a tough question but I would choose:
Noel Fielding, Mick Jagger, Kenny Dalglish,
Anna Wintour and Victoria Wood
Where is your favourite place in
the world to visit?
San Francisco, without a doubt. What advice would you offer your
teenage self?
I think I would probably advise against
some of my more questionable hair colours
(although I loved them all at the time!).
hilldickinson.comWhat are your favourite/least If you would like to know more about us, or any other
favourite foods? services we provide please visit our website or contact:
Jeff Middleton
My favourite food is Tuna Nicoise salad (or Partner (Manchester)
+44 (0)161 817 7260
crisps if I am being totally honest!). I can not jeff.middleton@hilldickinson.com
stand to be in the same room as yoghurt.
Kerstie Skeaping
Partner (Liverpool)
+44 (0)151 600 8498
kerstie.skeaping@hilldickinson.com
James Williams
Partner (London)
Who is your favourite superhero? +44 (0)20 7280 9245
james.williams@hilldickinson.com
Amy Millson
Bananaman Legal Director (Leeds)
+44 (0)113 487 7969
amy.millson@hilldickinson.com
Luke Green
Partner and head of education/schools
(Liverpool)
+44 (0)151 600 8791
luke.green@hilldickinson.com
This newsletter has been prepared for general information purposes only, it is not legal advice and is not to be acted upon as such. It is
accurate at the time of publication, but may not remain current thereafter. Specific legal advice should be taken as and when required.About Hill Dickinson Hill Dickinson LLP is a leading and award-winning international commercial law firm with more than 850 people including 185 partners and legal directors. The firm delivers advice and strategic guidance spanning the full legal spectrum, from non-contentious advisory and transactional work, to all forms of commercial litigation. The firm acts as a trusted adviser to businesses, organisations and individuals within a wide range of specialist market sectors. hilldickinson.com hilldickinson.com Liverpool Manchester London Leeds Piraeus Singapore Monaco Hong Kong
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