The number of claims submitted to employment tribunals citing concerns relating to health and safety have increased drastically, with the majority of cases relating to COVID-19.
As restrictions are eased and a return to the workplace is encouraged, growing hesitance from employees may result in a heightened risk of liability for employers.
Following a freedom of information request, it was found that between 1 April 2020 and 31 March 2021, 637 separate claims relating to health and safety were filed with employment tribunals, which is a significant leap from the 248 cases filed the year prior. This trend is expected to continue this year.
Types of claims brought
These cases largely relate to two provisions:
- Section 44 Employment Rights Act 1996 (ERA) protects employees (and, since May 2021, workers – which will bring additional claims) from detriment by their employer for leaving or refusing to attend work where they reasonably believed there was a serious and imminent danger that they could not reasonably have been expected to avert.
- Section 100 ERA 1996 provides that a dismissal will be automatically unfair where the employee left or stayed away from a workplace where either: (a) they reasonably believed there was a serious and imminent danger that they could not reasonably have been expected to avert; or (b) they took appropriate steps to protect themselves or others from danger in circumstances they reasonably believed to be serious and imminent.
If you are interested in finding out more about the impact of sections 44 and 100 ERA 1996, take a look at our employment article on dealing with employees who feel unsafe and refuse to return to work.
Some employees may bring whistleblowing claims, or look to involve their safety or union representatives, if they believe that they have suffered a detriment or been dismissed for making protected disclosures (relating to health and safety) which they reasonably believe to be in the public interest. There can be long-lasting, protracted dialogue and exchanges, or even reputational damage, from any mishandling of such claims. Employees’ safety and union representatives can, by law, have access to certain information, which may be used to support a future claim. Therefore, any such request for information should be handled transparently, but sensitively and carefully. To ensure that you are proceeding correctly, contact our specialist Employment team and Health and Safety team.
Health and safety
In addition to the above, employers are also under a positive legal duty to ensure the health, safety and welfare of their employees (which includes ‘workers’) and non-employees (members of the public, contractors, visitors etc.) under the Health and Safety at Work etc. Act 1974.
Whilst COVID-19 is a societal-based risk and proving the original source of transmission can be difficult, employers have been expected to comply with all legal requirements and recommended guidance. Consequently, employers are under an obligation to ensure they have a suitable and sufficient risk assessment to eliminate or minimise the risk of spreading COVID-19 in the workplace.
The purposes of a risk assessment include the need to identify what the risk is, who may be harmed, and what control measures are necessary to eliminate or reduce that risk to as low as reasonably practicable. Vulnerable workers, or those with any pre-existing health conditions or concern, need to be prioritised – where an employer is placed on notice, they may be required to conduct a bespoke individual assessment in certain situations (with discussion and consultation with that employee). The output from any risk assessment can provide demonstrable evidence or, indeed, a legal defence for the employer’s approach. Read our article to learn more about how employers can deal with these issues.
In Rogers v Leeds Laser Cutting Ltd [2020], (a case on which we reported last year) the employee’s section 100 ERA 1996 claim was rejected as there was no reasonable belief that there was a serious and imminent danger to him or his children from infection of COVID-19 at work given the measures and risk assessment the Employer had already put in place. In dismissing the claim and finding no immediate workplace risk, the employment tribunal also found that recognising COVID-19 as automatically creating a serious and imminent danger would open the floodgates to claims. This decision is not, however, binding on other tribunals and turned very much on its particular facts. Where it could be shown that an employer had failed to put in place adequate measures to control the transmission of COVID-19, this may expose them to the risk of liability. An appeal to this ruling will be heard by the Employment Appeal Tribunal this April, so we will continue to review this case as it could have serious implications for employers.
The Health and Safety Executive (HSE), the UK’s main health and safety regulator, reported that in 2020/21, 93,000 workers may have become exposed to coronavirus at work, and 645,000 additional workers were suffering from work-related illnesses that were caused or made worse by the pandemic.
As more employees return to traditional workplace arrangements (or at least hybrid working), we can expect to see an increase in the number of health and safety claims in the employment tribunal (especially as the tribunal works through its backlog). The HSE have made clear that despite a gradual easing of COVID-19 restrictions in workplaces, they will continue their spot checks of risk assessments, controls on ventilations and cleaning, hygiene, and face coverings etc (read our article for more information). In September 2021, a principal construction contractor was criminally prosecuted for various health and safety failings, including a failure to prevent COVID-19 transmission, resulting in a 12-month community order (and £3,095 in costs and surcharge). This was the first prosecution arising from the Spot Check Programme, demonstrating the HSE’s willingness to utilise the full extent of its enforcement powers.
Further duties on employers
This news of a rise in claims comes as the government announces that it will extend the duty on employers to provide, maintain, store, and replace suitable personal protective equipment (PPE) for all ‘limb b’ workers (no longer just employees). This will include zero-hours or casual workers. For workers, this will only apply during working time under their contractual assignment (or any other agreement setting out working hours in relation to ‘workers’), but not at other times. To learn more about this upcoming change, read our article.
It is advisable for employers to review and assess the employment and worker status of self-employed individuals (or Personal Service Companies) with whom they contract, especially as there is an increasing body of case law, following the landmark Uber decision, where judges rule on worker status based on the reality of personal performance and substitution arrangements as opposed to contractual terms alone. It would also be advisable to review PPE policies.
How employers can avoid liability
It is important for employers to avoid becoming complacent, and they must continue to maintain health and safety standards despite the winding down of restrictions.
Employers should:
- Keep informed of HSE guidance and the government’s ‘Working Safely During Coronavirus’ guidance.
- Continue to complete full and thorough risk assessments.
- Provide relevant PPE, as well as training and instructions on use, to all workers as required.
- Consult with workers to ensure that any concerns about health and safety are addressed in early stages.
- Ensure whistle-blowers are treated appropriately.
- Be willing to compromise (employers are allowing flexible start and end times to avoid busier commutes or allowing hybrid working to reduce workplace congestion). Consultation and employee engagement are key to resolving any potential issues amicably.
How we can help you
To discuss how your organisation can respond to or manage health and safety disputes or regulations in the workplace, please contact our Regulatory (Health and Safety) team or Employment team.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
