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Wednesday 02 September 2020
by Jackie Emson

How to avoid disputes arising from COVID-19 cases in the workplace

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Contributed by; Layla Barke-Jones, Dispute Resolution & Insolvency Senior Associate at Aaron & Partners

With the message changing from “work from home where possible” and the tentative steps towards a return to the workplace, it has never been more important for businesses to prepare for the possibility of an employee testing positive for COVID-19.

Employers must not only evaluate the potential disputes that could arise, but also take action in order to mitigate the risk of legal claims being brought. It truly is an incredibly uncertain time for businesses, which is why taking the time to plan and prepare for all outcomes is vital.

To help, we’ve highlighted the potential disputes that may arise following an employee testing positive for COVID-19, and most importantly how businesses can prepare themselves in advance for avoiding and responding to disputes.

What disputes may arise in the workplace?

There are several disputes that could arise if businesses do not take the time to carefully plan and prepare, which include:

• HSE intervention

• Civil Claims for Personal Injury (physical and psychological)

• Discrimination claims

• Redundancy claims

• Refusal to return to the workplace

How can we prepare the business for facing these disputes?

1. Complete a thorough risk assessment

Businesses will need to undertake and implement 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.

2. Ensure there is an audit trail

There should be 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.

3. 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.

4. 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.

5. 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

• HSE Northern Ireland template risk assessment https://www.hseni.gov.uk/publications/example-covid-19-risk-assessment-template

• 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