EMPLOYMENT LAW

Is Your Workplace Safe?

In the battle against Coronavirus we were treated to significant updates from both Westminster and Stormont this week. On a national level Rishi Sunak confirmed that the Coronavirus Job Retention Scheme (CJRS) will be extended in its current form to the end of July. A phased system is then to operate from August through to October with details to follow later this month. At the same time our local politicians were announcing their 5 step plan to return to normality (no dates included!).

Given the updates business owners will be turning their thoughts to ensuring that workplaces are safe for employees currently working and those that will be returning from furlough. Paramount importance must be put on ensuring that the health and safety of employees is protected. We have set out below the guiding principles in this regard.

A Safe Place to Work

The Health and Safety at Work (NI) Order 1978 stipulates that a safe place of work must be provided for employees. Failure to comply with the obligation can result in both civil and criminal liabilities for unwary employers. Although the likes of manufacturing companies will be fully conversant with obligations in this regard the pandemic has brought this into sharp focus for office based businesses as well.

Whilst every work place will have its own particular challenges, certain guiding principles apply across the board. They include the following:

  • Ensuring that a comprehensive risk assessment is conducted (and when completed, recorded in writing)
  • Special attention to be given to vulnerable employees
  • Once the risk assessment has been concluded ensuring that the safe system of operation is put into place to mitigate the risk and that employees are fully versed (and trained where appropriate) in same
  • Conducting regular checks and surveillance to ensure that the employees are complying with the system that has been put into place.

 

Covid-19 Specific Issues

 Applying the principle that a risk assessment should be the starting point there would appear to be three main areas of risk arising when combatting Covid-19:

  1. People – For example ensuring that employees are aware of the symptoms of the virus and both they and their employer can take immediate steps to ensure that infection is contained
  2. Aerosol – An employer must try to contain the threat of the spread of infection by air. Containment can be effected by the following;

    - social distancing measures being implemented

    - Plexiglas screens being installed

    - meetings being conducted remotely

    - limiting numbers accessing certain areas of the workplace at any one time; and

    - having staff working side by side rather than facing.

  3. Contact – This involves trying to limit exposure to the virus by direct contact. Examples include regular hand washing, deep cleaning of the workplace, no hot-desking, wiping down phones, computers and worktops regularly.

The matters outlined above are examples only of measures that can and should be taken and are not intended to be an exhaustive list. Every employer should take adequate time to assess the risks posed due to the circumstances of its workplace and staff.

Employment Rights

 Aside from the over-arching requirement to provide a safe place of work there are specific health and safety protections provided for employees in the Employment Rights (NI) Order 1996. We are already seeing cases where employees are concerned that attending the work place may be dangerous. Occasionally this can result in a ‘Mexican stand-off’ where the employee refuses to attend work and the employer either stops paying the employee or takes the more drastic steps and dismisses them.

Article 68(1)(d) of the Order states that an employee cannot be treated detrimentally (in other words have pay suspended) “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work”.

Similarly Article 132(1)(d) of the Order states that an employee will be unfairly dismissed when the dismissal arises in the same circumstances as quoted above.

It would seem that the risk of contracting Covid-19 is serious and imminent in the current climate. Therefore an employer who is deciding whether or not to stop paying or dismiss an employee refusing to attend work would need to demonstrate that it has taken all such steps as are reasonable to ensure that the workplace was safe. If it has not carried out the relevant risk assessment and taken the outline steps outlined in this article it is putting itself in the firing line for a Tribunal claim and potential criminal proceedings.

 

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

 

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