When coronavirus concerns become whistleblowing

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With the coronavirus pandemic gradually easing, many employers are now turning their attention to the challenge of bringing employees back to the office in a safe manner.

While practical steps like changing desk layouts and staggering the return of employees to offices have been at the forefront of the minds of employers in recent months, handling the concerns of employees is an area that could easily be overlooked – and one that carries potentially significant legal consequences.

These consequences could be costly and time-consuming, so it’s crucial that employers familiarise themselves with the rules around whistleblowing and what is protected by law.

As a general rule, reporting wrongdoing which shows a criminal offence, breach of legal obligation, health and safety and/or is considered to be in the public interest is protected under the law.

Given the obvious health and safety implications of bringing employees back to working together in person while the pandemic continues, there is little doubt that whistleblowing law applies to employee concerns about the return to work.

Clearly, the best way to reduce the risk of legal consequences is to develop a comprehensive plan for returning to work safely. However, even with the best planning, different employees are likely to have different views on how plans are implemented.

If employees believe a company is failing to meet health and safety standards, the onus is on employers to handle the situation.

Employees are protected from dismissal or detriment as a result of making a protected disclosure. Furthermore, whistleblowing claims have been added to the list of claims that employment tribunals may fast-track to hearings.

For employers who mismanage the situation badly, the legal challenges may therefore come thick and fast.

So how should employers ensure that they handle the concerns of employees correctly? The key takeaway is simple – do not mistreat employees for making protected disclosures or dismiss their concerns. Instead, employers must remain conscious of the concerns of employees and meaningfully take them on board.

Issues are likely to arise when employers bury their heads in the sand and refuse to acknowledge that there are potential issues with their plans to bring back staff.

Perhaps even more importantly employers should look to foster a workplace culture that encourages a healthy, open and transparent exchange of ideas between senior management and other staff.

This is a crucial step to ensure that employers’ plans on the return to work are properly communicated and understood by their employees, but also to ensure that employees feel comfortable expressing concerns about their plans and doing so in a fair and productive way.

This culture should be supported by a clear and up to date whistleblowing policy that is circulated to all employees. By engaging with employees and establishing areas of contention before or during the process, employers can mitigate some of the legal risks of bringing employees back to work.

Just as the start of the COVID-19 crisis brought aboutrapid shifts in working practices, the end of the crisis will also bring challenges as employers look to adjust to the new normal – whatever that may be.

Employers that maintain an open dialogue with employees and work with them to ensure that concerns over safety are taken into account will be well placed to navigate these challenges – and to do so within the law.

Musab Hemsi is partner at LexLeyton

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