Lucy Lewis and Shalina Crossley of Lewis Silkin, provide guidance to employers on how far their duty of care covers risks to employees during their commute to work
Following the government’s publication of its post-COVID recovery strategy, employers are beginning to consider how they may safely reopen the workplace for those who cannot work from home. All employers have statutory duties to provide a safe place of work and general duties of care towards anyone who may be accessing or using their place of business.
In order to prepare for reopening, employers are, therefore, required to undertake a health and safety risk assessment to identify current potential hazards in the workplace including the danger of COVID-19 transmission between employees. The employer must then take action to minimise those risks.
But what of risks faced by employees during their commute to work? For many employees, the key concern is not what happens in the workplace, but the risks of using public transport to get there. Does the employer’s duty of care extend to those?
What are an employer’s health and safety obligations?
There are four key legal responsibilities here:
Health and safety legislation
Under the existing legislation, an employer’s duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment. With very limited exceptions, that does not include risks they may face while travelling to and from work.
Common law duty of care
Employers also have a common law duty to take reasonable care for the health and safety of their employees. An employer can be found liable for negligence if it is in breach of this duty. An employer will only be in breach if:
- An employee suffers harm, which is caused by or materially caused by the employer’s actions or omissions.
- The harm was reasonably foreseeable.
- It is fair, just and reasonable to impose liability on the employer.
We are not aware of this duty being extended to an employee’s commute, and under ordinary circumstances, it would not be reasonable to do so. However, in this context, it is possible that employers could be found to have some duties to help employees avoid COVID-19 risks relating to their commute.
Duty of trust and confidence
An employer also has an implied contractual duty not to act in a manner which is calculated or likely to destroy the relationship of trust and confidence which underpins all employment relationships. In the current situation, it is possible a court might conclude that your implied duties of care and to maintain trust and confidence require you to have regard to risks associated with an employee’s commute. In other words, you could potentially risk constructive dismissal claims if you put employees in an untenable position over their commute to work.
Duty not to subject employees to a detriment or dismiss them for taking evasive action over serious and imminent danger
This is the most relevant obligation and we look at this separately below.
Does an employee’s commute pose a serious and imminent danger?
Employees have a right under s44 of the Employment Rights Act 1996 (ERA) not to be subjected to any detriment for refusing to come to work in circumstances where they reasonably believe they are in ‘serious and imminent danger’ which they could not reasonably have been expected to avert. It does not matter if the employer disagrees about the danger: the question is whether the employee’s perspective is reasonable.
In this situation, the employee has the right not to be subjected to any ‘detriment’ on the ground that they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work.
This statutory right appears to have been designed to protect employees from urgent dangers at the workplace (e.g. fire or asbestos) where they have no reasonable option but to leave or refuse to return to work. While the reference to ‘place of work’ in s44 might suggest it is limited to that situation, it is unclear whether it was also envisaged to cover dangers posed by an employee’s commute to work.
Employees who can fall within the protection of this section have the right to stay at home on full pay. At least, that is the implication, since ‘detriment’ would ordinarily cover loss of pay. There may, however, be scope for arguing that an employee who stays home on furlough or unpaid leave because of travel concerns is not being denied any pay that would otherwise have been due, or that pay is not being withheld because the employee refused to return to work. These arguments could possibly find favour with an Employment Tribunal (ET) in circumstances where the employer is taking all reasonable steps to control the risks.
The Edwards case and why it does not resolve these questions
In this context, it is interesting to note the 2014 case of Edwards and others v Secretary of State for Justice, which concerned 13 prison officers who refused to travel to work along a road which had been closed due to heavy snowfall. They were required to wait at an agreed pick-up point, with other prison staff, in accordance with the employer’s adverse weather policy. The prison sent a 4×4 truck and later a minibus, in which most of the staff travelled to work. The 13 claimants refused, citing concerns for their safety. They were not paid for that day and brought claims for unlawful deductions from wages, also asserting that they had suffered a detriment under s44 of the ERA.
The ET dismissed the claim but the Employment Appeal Tribunal (EAT) allowed an appeal, on the basis that the ET had not properly considered the reasonableness of the prison officers’ belief that travelling to work via the snow-obstructed road would place them in ‘serious and imminent’ danger. Significantly, the EAT said it was not relevant that some of the prison staff had made the journey safely, as this did not have any bearing on the reasonableness of the claimants’ belief. The case was sent back to the ET and the outcome is unknown.
While this case certainly suggests that employees can take protected action over an unsafe journey to work, our view is that it does not resolve the important questions:
The journey to work in this case was unusual. It involved travelling over the (relatively remote) road which leads to HMP Dartmoor. The officers had been asked to meet in a supermarket car park, from which prison vehicles would collect them. The employer seems to have been assuming some responsibility for this part of the journey and it was asking the employees to travel in work vehicles. This is very different from a city commute on public transport.
The EAT’s judgment did not deal with the specific issues of whether section 44 of the ERA extends to travel to and from work, or whether a failure to pay an employee where no work has been performed always amounts to a detriment.
The EAT said it made a difference what the police had said about prison vehicles using the closed road. If the claimants were told that the police had confirmed they could travel in the prison vehicles, then ‘it would be very difficult indeed for the claimants to maintain that they had a reasonable belief in serious danger.’ This raises questions over whether advice (for example, from bodies such as SAGE) could influence the issue of reasonableness.
How should employers deal with this issue?
We can expect litigation on this issue and other legal conundrums raised by Covid-19, but the outcome of any litigation may not be known before employers need to make practical decisions about how to mitigate their risks. Our recommended approach is as follows:
For the time being, all employees who can work from home should continue to do so.
If you are planning for reopening, engage with employees on how they propose to travel to work and any issues they foresee. This will ensure you are aware of employees’ potential concerns and can address them in advance. Employee surveys are a good way to do this.
If you can, ask only those employees who are happy and willing to attend the workplace to do so. Keep other employees who don’t feel they can travel safely on furlough or working from home. Employees who have not been asked to return cannot easily say that they have ‘refused’ to do so within the meaning of s44 of the ERA. If you can avoid calling on public transport users to return for as long as possible, you can reduce or at least defer any arguments over whether your duties extend to the commute.
Where some employees must attend work, assess each employee’s circumstances on an individual basis. Whether an employee can refuse to return to work under s44 of the ERA will be judged according to their own circumstances and beliefs, so you can reduce exposure to claims in practice by taking a case-by-case approach, taking account of the individual’s commute and general health. For instance, an employee with an underlying health condition (falling within the government’s definition of ‘clinically vulnerable’) who must rely on public transport will have a greater chance of successfully relying on the statutory protection.
Support employees to travel by means other than public transport, such as walking, cycling or (in appropriate cases) driving. This could involve a range of measures, from helping employees get access to bikes, fitting more bike storage or adjusting hours so that employees can walk in. Might there even be another place where the employee could work, such as a different office or even a client site?
If some employees must come back, and must use public transport, document the rationale for your decision. Consider implementing flexible or off-peak start and finish times or doing whatever else is reasonably practical to help control the risks, such as providing face coverings. Make sure employees are aware of the government guidance on travel and what they should be doing to avert risks.
Finally, don’t overlook mental health. Many people will be anxious about the prospects of returning to work, and especially using public transport. Colleagues may also be concerned about working alongside employees who have travelled on public transport. It’s important to support everyone’s wellbeing.
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