unlimited serious and imminent ET claims about to hit most employers
How will you respond, whether as employer or employee, to any of these situations in the workplace?
- masks aren’t sufficient or being worn in the workplace
- someone cough’s in close proximity to a worker
- a customer or client shows up with Coronavirus symptoms
- employees can’t keep a 2m distance
- a colleague denies having Coronavirus but she’s got symptoms
Do you think the risk is of a “serious and imminent danger“? Bear in mind that danger doesn’t require a likelihood of death. Illness will do.
Given the government messaging and media reporting, it will usually be reasonable to believe that the danger of contracting and becoming quite ill from Coronavirus is both serious and imminent.
Anyone who is concerned can just stay at home
Anyone who believes they are at increased risk of contracting Coronavirus at work, right or wrong, is likely to be entitled to leave work or not come in at all.
The law protects them from being dismissed or suffering any detriment because they do. There is no need for 2 years’ service and any dismissal, including constructive dismissal, which results will be automatically unfair and compensation will be unlimited.
How the employer reacts (see below) will determine whether or not the employee will have a good or bad claim.
In fact, with advice from a good employment lawyer anyone who raises concerns of this nature is also likely to find claims can be made under whistle-blowing legislation. Why is that so significant? Because individual managers/directors/owners responsible for decision making can be sued personally, as well as the company.
Take control
Provided employers have taken necessary steps, it will be quite lawful for the employer to stop paying the working while they don’t attend work.
Those steps are, in short, ensuring
(a) health and safety obligations can be demonstrated as being met and
(b) that communications with the worker confirm the lawful reason for the employer stopping pay.
If the employee continues to stay away, there will also be a fair and lawful reason for dismissal.
But since very experienced lawyers aren’t understanding this, how are the employee and employer supposed to? The reality is that most employers will either simply continue to pay wages unnecessarily out of fear of claims or they will given the worker an open goal to an employment tribunal claim for potentially unlimited sums. And since the claim will often be possible against individuals, a company’s limited liability status wont’ offer much comfort.
Unhelpful advice
Many lawyers seem to be advising that ‘this is a difficult situation…’. Agreed, but not helpful.
Many seem to be advising ‘the law wasn’t drafted with a pandemic in mind… ‘ Possibly.
Many continue ‘…and it is a very risky thing do anything other than keep paying the employee until you can prove or reassure them that the risk has been removed.’ Completely disagree. It is also very unhelpful.
Be very concerned about advice to the effect that an employer can’t do anything. If employers take control as we suggest, this difficult situation becomes a whole lot easier.
Short Zoom webinars
We will be conducting some short free live webinars to give the practical tips and advice necessary to businesses and their owners and HR about how to deal with these situations. Please contact us if you want to receive an invite.
Links to main government websites
gov.uk: guidance for the job retention scheme