One of the biggest areas of ambiguity is the whole question of what is essential and who should remain at home. In the Prime Minister’s announcement on Monday, attending work was one of the exemptions he listed, but he said that people should only attend work if you cannot work from home and it is essential for you to do so.
This left a divergence between the Prime Minister’s instructions to citizens (‘stay at home’) and his advice to businesses, which has left many of my constituents deeply worried about continuing to attend work in contradiction to the Prime Minister’s demands.
Unlike the retail sector, manufacturing, commercial and distribution companies have not been instructed to close at this stage, and it is for each company to make a judgement about whether their work is essential and whether each individual staff member is essential.
The Government has listed what are considered essential businesses, but companies that are not on this list are not legally compelled to close. Morally, I believe many of them should offer their employees the opportunity to be ‘furloughed’, but many of them claim a link to the national battle to defeat Coronavirus. This then opens the question, would a car part distributor, that supplies 1% of it’s car parts to our emergency services be considered an essential supplier?
There is also ambiguity about whether a company that still has work for its workers to do, is allowed to furlough staff that have been advised to be in self-isolation. However, the government’s formal advice makes clear: “Employees who are shielding in line with public health guidance can be placed on furlough.”
If companies choose not to furlough staff and to carry on, they must take measures to ensure social distancing at work. Anyone who feels that their employer isn’t taking reasonable steps to keep them safe at work is entitled to submit a Section 44 request to contest the adequacy and/or suitability of safety arrangements without fear of recriminations (e.g. getting sacked or transferred) or suffering detriment (e.g. loss of wages).
Section 44 could entitle employees to claim for ‘Constructive Dismissal’ and compensation in the event that an employer fails to maintain safe working conditions. So if you submit a Section 44 request and this is ignored by your employer, they could be opening themselves up to a legal case if you were then to catch the COVID-19 virus.
If the grimmest of predictions about the rates of death and serious illness we face prove accurate, I foresee a significant number of law suits to follow this period from people or their bereaved families who have contracted Coronavirus at work with serious consequences, if their employers have failed to take necessary steps to protect them.
I anticipate that we haven’t yet seen the most serious lockdown measures introduced, indeed I wish Government was acting more strongly more quickly. I have added my name to a letter calling on the government to do more to protect people at work and provide more clarity about which companies should close, In the meantime, I would advise all employers to assess every day whether their work is truly essential and whether they are taking all the necessary steps to keep their staff safe.