11th August, 2020

Avoid disputes arising from a positive COVID-19 case in the workplace.

With a number of businesses recently experiencing significant outbreaks and the easing of workplace restrictions, we look at the potential disputes that may arise following an employee testing positive for COVID-19 and most importantly how businesses can prepare themselves in advance for avoiding and responding to disputes.

What disputes may arise in the workplace?

• HSE intervention
• Civil Claims for Personal Injury (physical and psychological)
• Discrimination claims
• Redundancy claims
• Refusal to return to the workplace

How can we prepare the business for facing these disputes?

Risk Assessment

The first and obvious step is a risk assessment. The business will need to undertake a COVID-19 risk assessment and be able to show that it was completed by a competent person who considered the most up to date government guidance. It needs to be thorough and to cover all the work patterns which are currently being engaged (including shift work, working from home, working at different sites or within confined areas). It will need to cover psychological risk factors, especially stress, as well as the physical risk of spreading the disease within the workplace.

It is an offence (although rarely prosecuted by the HSE) not to consult employees or their representatives on the risk assessment. Doing so also helps avoid a dispute arising later on.

Audit Trail

There will need to be an audit trail showing the communication of the measures put in place, any signage that is used and the advice given to employees (and others using the workplace) as well as any enforcement/disciplinary action taken when these measures are not observed (as with all measures this will need to be applied uniformly across the business).

As the risk assessment will need reviewing and updating regularly to deal with the fast-changing advice all editions of the risk assessment should be saved in a single place and easily accessed if an inspector comes knocking. It would be desirable to record the basis for the decisions taken (particularly with reference to current guidance) given that personal injury claims may be brought up to 3 years later.

With many employees working from home there may be unusual document storage; this should be agreed beforehand and updated as soon as possible.

Employee Engagement

Employee engagement will be crucial to avoiding many disputes – employers need to consult with their employees along every step of the way. All employees will have had their daily work experience impacted by the current pandemic – but this will be by no means the same across the board. Workplace changes, personal circumstances and individual perception will mean no two employees have had the same experience, the only way to assess the impact and the measures required is to consult with employees.  The plus side is this will enhance cohesion and a sense of wellbeing amongst the workforce which reduces the risk of employee disputes arising later.

Decisions should be made with employees wherever possible and remember the golden rule to always follow a fair process. Do not make decisions based on protected characteristics and consider whether the measures in place disadvantage any particular groups.

Response Team

Another good practice is to establish a Response Team for any COVID-19 outbreak (this will also serve for other health and safety incidents). The Response Team should include Heads of Business, a contact at the Insurer/broker, a Solicitor and someone responsible for Press Relations. Having a solicitor involved to give advice at the early stage may enable certain documents to be protected from disclosure.

The Response Team should identify a person to act as the Single Point of Contact to deal with the press, local authority, insurers, solicitors and others from outside of the organisation. Some thought needs to go into this selection as it requires good organisational and communication skills – it is best to identify who this will be in planning rather than in the midst of a crisis.

Stay up to Date

Advice is changing all the time but there is plenty of it. Here at Aarons we are keeping up to date with legal requirements on our Coronavirus News Hub.

Government guidance is available on the gov.uk website.

Other useful resources are:

HSE

Equalities and Human Rights Commission (available also in Scotland and Wales via the link)

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