Of the 5,585 total complaints, 2,865 related to social distancing failures (and a further 424 related to a lack of PPE).
These statistics are striking, particularly as social distancing is just one element of the government’s guidance on COVID-secure workplaces. It suggests that employees have come to see the presence (or lack) of social distancing as the main indicator of a safe working environment.
The data is particularly surprising, because it shows that of the 2,865 complaints, 25% occurred in October and November, more than six months into the pandemic. This suggests that many employers continued to struggle with the implementation of safe and effective social distancing measures, even after the conclusion of the UK’s first national lockdown.
A failure to ensure proper distancing at work is likely to be a breach of an employer’s express duties under health and safety legislation. As a minimum, employers are required to ensure the health, safety and welfare at work of employees, so far as is reasonably practicable.
Complaints filed with the HSE can lead to investigations, enforcement notices and prosecutions. There is also a reputational risk as the HSE can name and shame non-compliant employers.
However, employers who are failing to implement social distancing measures as required may face additional legal challenges, in the form of Employment Tribunal claims.
Many HR professionals will be very familiar with the claims employers face in respect of employees who have made a report to the HSE. If an employee suffers a detriment or is dismissed due to raising concerns with the HSE, they will have a claim for whistleblowing detriment and/or unfair dismissal.
However, they may also have an automatically unfair health and safety dismissal claim if they raise such concerns internally or are dismissed for staying away from a workplace they reasonably believe places them in serious danger. In these types of unfair dismissal cases, damages are uncapped. It is therefore a potentially expensive claim to defend.
The Tribunal’s own statistics suggest that the pandemic has led to an increase in claims across the board. In the most recent set of Employment Tribunal statistics, covering the period from July to September 2020, there was a 13% increase in claims compared to the same period in 2019. It should be expected that some of those cases involved a whistleblowing complaint relating to COVID measures.
The advice to employers is to understand your obligations with respect to health and safety and take all of the precautions you reasonably can to keep your employees safe. As lockdown measures start to ease in the UK this spring/summer, it is highly likely that COVID-secure measures will still be in place as sectors (primarily office-based employers) which have primarily worked from home all winter welcome staff back into the workplace.
However, it’s just as important for employers to ensure that they provide clear communication with their employees about what COVID precautions are in place. Employees may make a complaint to the HSE or elsewhere when they believe they are at risk (even if the reality is that the workplace is as safe as it can be).
When that belief is reasonably held, they will be protected under whistleblowing legislation regardless of the reality of the situation. Therefore, employers should ensure their employees are made aware that they have strong and enforceable health and safety measures in place. As we have seen, employees are currently not shy about making reports to the HSE (and nor should they be) when they see a failure to enforce even the most basic of health and safety precautions.
Sophie Vanhegan is partner and Mark Callaghan an associate at GQ|Littler
