Does an employer’s duty of care extend to commuting to work?

Does an employer’s duty of care extend to commuting to work?

Businesses have a statutory and common law duty of care to their employees, workers, and anyone who may be accessing or using their place of work.

Consequently, even prior to the current pandemic, they had to do all that is reasonably practicable to support the health, safety and wellbeing of these individuals.

As society adapts to the ‘new normal’, businesses are desperately trying to balance the need to operate safely whilst meeting customer demands. Many have invested significant amounts of time and resources implementing the government guidelines to comply with their obligations, and minimise the risk of coronavirus transmission. But as businesses open up and workers return to the workplace, how can employers respond to concerns from employees who don’t want to return to work because of the risks of contracting coronavirus on public transport? For those who can’t get to work by other means, does an employer’s duty of care extend to an employee’s daily commute? And how should employers deal with staff refusing to come to work for this reason?

S44 Employment Rights Act 1996 (‘ERA’) – serious and imminent danger

Under S44 of the ERA, employees have the right not to be subjected to any detriment for leaving or refusing to come to work in circumstances where they reasonably believe they are in ‘serious and imminent danger’ which they could not reasonably be expected to avoid. For these purposes, it does not matter if the employer disagrees with the employee, it is only whether the employee’s perspective is reasonable.

Therefore, 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 catching Covid-19, especially if they are travelling during rush hour. But if an employee is not willing to attend work, are they entitled to be paid?

Employees who are dismissed for refusing to attend work in these circumstances, or who are refused pay and required to take unpaid leave, could bring claims arguing that they have been unfairly dismissed or have been subjected to an unlawful detriment because of their belief that their commute and the associated risks of catching coronavirus constituted a serious and imminent danger.

It is too soon to know if an employment tribunal would agree with such an interpretation and any decision would be dependent on the specific facts of the case but employers need to be aware of this possibility and take steps to protect themselves against such claims.

How should employers deal with this?

As always, employers are encouraged to take time to listen to individual concerns and to try and work with employees to alleviate them wherever possible.

Practical points for employers to consider  include:

  • While the risk of Covid-19 remains high, allow those who can work from home to do so (this is currently in line with government guidance).
  • Discuss with employees their individual circumstances, and how they intend to travel to work and any issues or concerns they may have.
  • If an employee feels particularly unsafe travelling to work, implement some flexibility, and allow them to work from home or temporarily change their start and finish times so that they are travelling outside rush hour until things improve.
  • Advocate and support other transport methods for employees e.g. cycle to work scheme or discounted taxis.
  • Allow them to use holiday allowances or some form of unpaid sabbatical.

Wherever possible agree a solution which works for both parties.

How Blaser Mills Law can help?

Employees and employers have had to respond to this unprecedented situation with speed and flexibility, which has undoubtedly been challenging for all involved. With so many rules and regulations regularly changing it can be difficult for employers to navigate and keep on top of what is expected of them. Our expert lawyers are able to advise and guide you through all of the requirements, providing you with practical solutions to ensure you remain compliant.

For more information on the contents of this article, please contact Debbie Sadler on 01494 478671 or at djs@blasermills.co.uk.