Employers owe common law and contractual duties to take reasonable care to provide their employees with a safe place to work. This duty requires the employer, in general terms, to provide its employees with safe tools and equipment, and a safe system of working.
What constitutes “reasonable care” is, of course, fact-specific. It turns on the foreseeability and magnitude of the harm that might take place and the costs of taking steps to prevent it.
The specific risks associated with covid-19 are by now well known to everyone. The Government has issued guidance identifying those risks and the groups within society that are particularly vulnerable to them. One prominent “high risk” group- the over 70’s- are unlikely to be active in most workplaces. Other “high risk” groups, such as pregnant women and those suffering with underlying health conditions such as asthma or diabetes, will be.
Employers ought to exercise particular caution before deciding to compel individuals within “high risk” groups to attend work in public-facing roles. The risks of such individuals suffering serious injury should they contract the covid-19 are higher than for the general population. Both the foreseeability of and magnitude of harm is greater for employees in these categories.
Even for employees who are not “high risk”, the employer must still take reasonable steps to provide a safe place of work. An employer is unlikely to act reasonably in requiring an employee to attend work in the absence of measures designed to minimise the risk of the virus spreading. For example, an employer who requires its employees to work without proper access to hand-washing facilities is likely to be in breach of the duty outlined above.
Accordingly, the answer to the question posed above is (in typical lawyers’ fashion): it all depends. An employer will be entitled to compel an employee to attend work so long as reasonable steps have been taken to render the working environment safe. The steps necessary to achieve this will differ depending on the specific characteristics of the employee and the specific nature of the work at hand. In practical terms, any employer who requires employees to attend work during this time ought:
- To seek to consult with the employee in question in order to understand any particular concerns they have;
- To attempt, to the extent possible, to avoid placing employees who are at “high risk” in public facing roles; and;
- To follow Government guidance as to the sorts of measures that those in the general population ought to take to reduce the risk of covid-19 spreading, such as ensuring that employees regularly wash their hands and avoid direct physical contact with others were possible.
Even if those steps are taken, employees may still prove reluctant to attend work in a public-facing role. Employers in such a situation ought to be slow to invoke disciplinary procedures: these are likely to be appropriate in only the clearest case of an unreasonable refusal on the part of the employee. Employers may, instead, wish to consider whether they are entitled to treat any unauthorised absence by employees in such situations as holiday.
