In the last few days, staff at the DVLA in Swansea have voted for industrial action over COVID-19 health and safety concerns. This reflects an increasing focus by employees and workers on whether companies are taking sufficient steps to make workplaces “COVID-19 secure” and to protect them from the risk of contracting COVID-19. This scrutiny will only continue to mount as more staff gradually return to work in the coming months and may receive particular focus from groups of employees or workers who have not been, or do not want to be, vaccinated against COVID-19.
In this blog, we explore some of the possible claims, both criminal and civil, which staff may look to pursue (whether directly or indirectly) over the coming months in England and Wales in relation to health and safety concerns. Whilst these claims could be brought on an individual basis, the treatment of employees and workers is likely to be similar and that makes them highly suitable for group actions.
- Health and Safety Executive (HSE) enforcement – the HSE is Britain’s national regulator for workplace health and safety and has a variety of enforcement powers, including the ability to enter and search premises, interview individuals, and issue formal enforcement notices. The HSE’s ability to handle complaints during the pandemic has been queried – as of January 2021, it had received over 130,000 complaints since the start of the pandemic, but only issued 192 enforcement notices (for context, the HSE issued 7,000 enforcement notices in response to over 32,000 complaints in the year before the pandemic). In practice, the HSE is likely to prioritise investigations and enforcement action in relation to the most egregious health and safety breaches. If staff feel that they cannot rely on the HSE to enforce safe working practices and protect their health and wellbeing, workers may look to pursue industrial action and/or bring civil claims directly against the companies they work for.
- s.44 / s.100 Employment Rights Act 1996 (ERA) – an employee, or groups of employees, could bring a claim in the Employment Tribunal under s.44 ERA, alleging they were subject to detriment (for example not being paid) on the grounds that they refused to work or took other appropriate steps to protect themselves because they reasonably believed they were in serious and imminent danger. Whilst demonstrating “serious and imminent danger” may become more difficult in circumstances where infection rates continue to decline, this will be more straightforward where an employer is breaching the Government’s workplace COVID secure guidance. A s.100 ERA claim could be brought where an employee was dismissed in similar circumstances. Either claim would have to be brought within three months from the detriment / dismissal. It is also worth noting that on 10 March 2021, the Government laid an order before Parliament to extend s.44 rights to workers (rather than just employees), which would increase the number of people who could bring these types of claims.
- Unlawful deduction from wages claims – an employee, or groups of employees, could bring this claim within three months from the last unlawful deduction, in circumstances where (for example) they refused to attend the workplace due to health and safety concerns, their employer argued that this constituted a failure to follow reasonable and lawful instructions, and their employer therefore refused to pay their wages.
- Constructive dismissal – an employee, or groups of employees, could allege that their employer requiring them to attend the workplace has breached the implied duty of trust and confidence between employer and employee, and that the employee is therefore entitled to treat themselves as dismissed. One particular challenge in bringing this claim is being able to prove that the employer’s breach of health and safety law and guidance directly led to the dismissal. This would be challenging if the employee continued to attend work for some time before bringing the claim, and where the risk of contracting COVID-19 was broadly the same across that period of time.
- Whistleblowing detriment – this claim could dovetail with HSE enforcement, as discussed above. An employee’s complaint that their employer was breaching health and safety legislation and Government guidance could qualify as a protected disclosure and the employee may therefore be entitled to protection from detriment and dismissal.
For more information on group workforce claims, see our previous two blogs in this series: WorkLife 2.0: the likely increase of group workforce claims in 2021; WorkLife 2.0: trends to look out for in group workforce claims in 2021.