An experienced Dispute Resolution & Insolvency lawyer is urging employers to take action now to ensure they avoid potential disputes that may arise from a positive COVID-19 case in the workplace.
Layla Barke-Jones, a Senior Associate at Aaron & Partners, has highlighted a number of possible disputes that could arise in the workplace if an employee should test positive for coronavirus.
She explained that following Boris Johnson’s announcement that from 1 August, employers will have the discretion to decide if it is safe for their staff to return to the workplace, businesses must prepare for the possibility of an employee testing positive for COVID-19, and they must carefully consider the implications this could have.
Layla further explained that there are several disputes that could arise if businesses do not take the time to carefully plan and prepare, which include:
- Health and Safety Executive (HSE) intervention
- Civil Claims for Personal Injury (physical and psychological)
- Discrimination claims
- Redundancy claims
- Refusal to return to the workplace
Layla said: “With a number of businesses recently experiencing significant outbreaks and the easing of workplace restrictions, it is important for employers to consider the potential disputes that may arise following an employee testing positive for COVID-19. It is crucial for businesses to prepare in advance in order to avoid any disputes arising.
“It is an incredibly uncertain time for businesses and many are facing unknown challenges, which is why taking the time to plan and prepare for all outcomes is vital.
“Employers must not only evaluate the potential disputes that could arise, but they must take action in order to mitigate the risk of legal claims being brought against them. To help, we’ve put together a list of the key things employers can do to prepare for potential disputes.”
- Complete a thorough risk assessment
The business will need to undertake a thorough COVID-19 risk assessment and be able to show that it was completed by a competent person who is considered the most up to date with government guidance.
It needs to cover all the work patterns which are currently being utilised (including shift work, working from home, working at different sites or within confined areas). It should also cover psychological risk factors, especially stress, as well as the physical risk of spreading the virus within the workplace.
It is an offence not to consult employees or their representatives on the risk assessment, and by doing so it will also help avoid a dispute arising later on.
- Ensure there is an audit trail
You should have an audit trail showing the communication of the measures put in place, any signage that is used and the advice given to employees and visitors as well as any disciplinary action taken if these measures are not observed.
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.
- Prioritise employee engagement
Employee engagement will be crucial to avoiding 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 by no means be consistent 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.
- Establish a 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 third parties such as 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:
- At Aaron & Partners we are keeping up to date with legal requirements on our Coronavirus News Hub https://www.aaronandpartners.com/category/coronavirus/, please keep checking back for the latest updates.
- Government guidance is available on the gov.uk website https://www.gov.uk/coronavirus.
Other useful resources are:
- HSE https://www.hse.gov.uk/coronavirus/index.htm
- Equalities and Human Rights Commission (available also in Scotland and Wales via the link) https://www.equalityhumanrights.com/en/our-work/our-response-coronavirus-covid-19-pandemic