As more businesses reopen, many employees are reluctant to return to the workplace due to concerns about the health and safety risks of the coronavirus.
In addition to the potential hazards faced by employees in attending the workplace, another key concern is the risks they may be exposed to when using public transport to commute to and from work.
All employers have a statutory duty to provide a safe place of work and a general duty of care to anyone who may be accessing or using their place of business. In order to prepare for a safe reopening of the workplace, employers must undertake a health and safety risk assessment to identify potential hazards and then take action to avoid or minimise those risks.
Under existing health and safety legislation, the duties that employers have to ensure the health, safety and welfare of staff, apply both to the workplace or situations where the employee is ‘acting in the course of employment’. In most cases, this will not include risks faced when the employee travels to and from work.
The most relevant obligation of an employer in respect of the employee’s commute, is the duty not to subject employees to a detriment or dismiss them for taking evasive action over ‘serious and imminent danger’.
Under the Employment Rights Act 1996, employees have the right not to be subjected to any detriment if they refuse to attend work in circumstances where they reasonably believe they are in ‘serious and imminent danger’. It does not matter if the employer disagrees about the danger; the important factor is whether the employee has a ‘reasonable belief’ that they are in danger.
It is therefore possible that an employee who has no alternative but to travel to work on public transport could argue that their commute places them at serious risk of harm from coronavirus, particularly if they are travelling during peak hours.
In this situation, the employee has the right not to be subjected to any ‘detriment’ for refusing to attend work due to unsafe travel arrangements. As a detriment would ordinarily cover loss of pay, the implication is that employees who fall within the protection of this duty have the right to stay at home on full pay.
Whilst it is still unclear whether an employer’s duty of care extends to the daily commute, there will no doubt be a flurry of claims on this issue in the future and employment tribunals will have to balance the reasonableness of an employee’s refusal to attend work, in light of each employee’s own concern and risk level, against the extent to which the employer has fulfilled its health and safety obligations.
Practical points for employers to consider in the meantime include:
- Communicate with employees about their commuting arrangements and any issues or concerns they may have
- If employees can work from home, allow them to do so, particularly whilst there is still a potential risk in using public transport
- For employees who are unable to work from home, consider what other steps can be taken to help them travel to work by other means or allow them to work at a different office/site if this is possible
- If public transport is the only option, stagger working times outside rush hour and provide car parking and bike storage
- Ensure employees understand the government guidance and the importance of wearing face coverings on public transport
Using public transport will be a source of anxiety for many employees returning to work during the pandemic.
It is important that employers support their employees’ mental health and address any concerns about the risks they may be exposed to during their commute to work, as well as in the workplace.
For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.