How employers can avoid employee claims arising from Covid-19

Employment lawyer Helen Watson shares best practice to avoid being on the receiving end of a workplace claim.

There is likely to be an increase in claims from employees in the wake of the coronavirus pandemic.

It is therefore important that employers remain mindful of their duties and responsibilities. This is particularly relevant to employees returning to work after the lockdown period, or following dismissals arising out of COVID-19.

Exceptional circumstances don’t give protection

The pandemic has created a difficult set of circumstances for businesses. However, this will not be enough to shield employers from courts and tribunals and many employers are likely to see a spike in claims from employees.

Businesses need to make critical decisions whilst keeping on top of already existing employment legislation alongside the ever-changing guidance set out by the government.

Risks areas

Furloughing and redundancy decisions are among those that may be challenged.

If employers make decisions without following fair and proper procedures, they leave themselves open and vulnerable to different kinds of claims from employees in relation to their employment including:

• Constructive dismissal
• Unlawful discrimination
• Unfair dismissal
• Breach of privacy

With Boris Johnson announcing phased plans to lift lockdown restrictions, employers are keen to resume to “business as normal” as quickly as possible. That said, it has been made very clear by Michael Gove that the UK will not be going “back to the old normal” and the road ahead is a slow, phased return.

Employers and HR teams have already started planning ahead for a return to work.

However, many workers are concerned about returning to the workplace and want to know that they will be safe.

It is therefore essential that employers put in place appropriate measures to manage risk and ensure that employees feel confident to return to the workplace.

Careful planning and manager training is essential to minimise the risks of claims by employees at this time.

General good practice

Conduct risk assessments and ensure appropriate safety measures are in place

Businesses need to ensure that they are taking all necessary steps to ensure appropriate safety measures are in place, including conducting appropriate risk assessments. It is important individual risk assessments are also carried out. Risk assessments may vary from business to business, but it is essential to consider the following:

• Travel to work
• Work space – including sanitisation requirements, social distancing or mitigation measures
• PPE requirements
• Mental and physical health and safety at work.

Follow specific Government guidance issued for the relevant business sector.

• These currently include: hotel and restaurants, working in other people’s homes, factories, working outdoors, working in vehicles, retail and office environments.

Following the guidance given by the Government and Health & Safety Executive in addition to Public Health England Guidelines on social distancing.

Once lockdown is lifted, many of the current recommendations are likely to remain in force, for example:

• Enhanced hygiene requirements
• Continued social distancing (where possible) to maintain a 2-metre distance
• Staggering of hours of work and break times to reduce crowding
• Isolation for anyone who develops symptoms
• Reducing touchpoints (e.g. door handles, photocopiers and printers)
• Restrictions on turnstiles, lifts and shared workplaces such as hot-desking arrangements

Training for managers and all staff.

Training is essential to ensure all managers are aware of potential risks, to address employee concerns appropriate and to spot issues that may trigger disputes and claims:

• Equality refresher training for all
• Mental health first aider training
• Manager training

Communication

• Ensure all new rules and obligations are communicated to all staff, particularly in respect of health and safety
• Update disciplinary procedures to make it clear a breach of the new the health and safety measures could result in disciplinary action and the possible consequences
• Ensure staff are kept up to date with any proposed changes
• Ensure staff know where they can get support for their well being, including access to Employee Assistance Programmes

Policies

• It is essential to review policies and procedures and ensure they are up to date, for example, disciplinary and grievance, flexible working, home working policy, equal opportunities, welfare policy and health and safety.

Protecting employee privacy

Employers should be careful not to disclose the identity of individuals who have been infected with Covid-19 unless they are able to establish that it is absolutely necessary to ensure safety at work or to meet public health requirements.

Employers should ensure that data protection compliance documents are reviewed and updated, including:

• Data privacy notices
• Consent forms
• Data registers
• Retention and destruction forms.

Where transparency and privacy rights collide, employers may be faced with potential safety risks on the one hand and potential risks of breach of privacy rights on the other.

Challenges to furlough and redundancy

Comply with current legislation and ensure all processes are fair, transparent and thorough

It is anticipated that many employers will face potential claims as a result of disputes arising from furloughing and redundancies.

For example, if employees perceive that the reason they were or were not furloughed – or in some cases were made redundant – related to a protected characteristic under the Equality Act 2010, they may pursue discrimination claims.

It is essential that employers still follow current equality law legislation when making decisions and ensure that no employee is subject to unlawful discrimination.

Employers also need to ensure that they follow their internal procedures, the ACAS Code and current legislation to minimise the risk of claims. Whilst adaptations may need to be made to processes, it is essential that employees are aware of any changes, kept up to date and individual circumstances are taken into account which may vary from employee to employee.

It is important employers take steps to minimise the risk of claims against them. We would always recommend businesses to seek legal advice during this time.

About the author

Helen Watson is a Partner and Head of Employment Law at solicitor Aaron & Partners. She is also an experienced advocate and accredited mediator.

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