Employment Law Updates

Posted on: 11 May 2020

‘Loosening the Lockdown in the Workplace’

by Grace Cullen

Today, the Government published its detailed plan for lifting the lockdown. The Plan makes clear that the Government is balancing competing risks, namely the spread of Covid-19 in communities and the need to safeguard the NHS versus the impact on the economy, the impact on other health issues (including mental health) and the impact on education. The plan makes clear that funding the NHS is dependent on a strong economy. With that in mind, the Government has encouraged workers to go back to work, where it is not possible for them to work from home. The following guidance has been given to take effect from the 13th May 2020:

‘For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. This will help minimise the number of social contacts across the country and therefore keep transmissions as low as possible…

All workers who cannot work from home should travel to work if their workplace is open.’

Key industries such as food production, manufacturing, logistics, scientific research and distribution workers have been identified where employees are actively encouraged to return to work. Whereas hospitality and non-essential retail are currently required to remain closed.

What does that mean in practice?

As part of the Guidance, the Government has referred to its ‘Covid-19 Secure Guidelines’ which must be adhered to in workplaces. The Government is working with relevant bodies including the Health and Safety Executive, unions, local authorities, industry bodies and Public Health England to provide guidance for employers and companies to provide safe working environments for their staff.

The detail has not been published but is expected later this week. One key difference from pre-lockdown and post-lockdown is the use of face masks or coverings in public areas and public transport. The Covid-19 Secure Guidelines will likely include reference to provision of PPE (personal protective equipment) to the workforce, how social distancing will be managed and what precautions can be taken if it is not possible to socially distance.

It is worth remembering that employers remain under a duty of care to their employers and workers, which includes a duty to keep them safe. As well as regulatory (statutory) duties on employers, the employer is also subject to the implied term of mutual trust and confidence which is a term included in every employment contract. It is likely to be a breach of this term if an employer requires its employees to work in an environment which is unsafe. In such circumstances, employees may be entitled to treat unsafe working environments as a breach of the implied term and therefore a fundamental breach of contract. This could mean constructive dismissal and a possible claim for unfair dismissal.

Employers will be very aware of the need to keep their workforce safe under very difficult circumstances. Hopefully, most employers will be working hard to ensure that workers who are required to attend their workplace in person are protected and safe. It is therefore essential that the Government provides clear guidance that make it easy for employers to adopt and ensure the safety of their staff (and therefore the community) is protected.