CORONAVIRUS - COMMUTING - 11.06.2020

Does your duty of care extend to commuting?

You know that you’re under a duty to provide a safe place of work. But in the current health crisis several employees have raised the issue of safety on their commute to work. What’s the position?

Coronavirus concerns

Like all employers, you’ve probably considered the impact coronavirus could have on your workplace and taken all reasonable steps to keep your staff well and safe in your premises.

This might include providing personal protective equipment, rotating start and finish times, limiting numbers in your buildings or implementing social distancing measures, e.g. moving desks and seats, or installing screens.

Health and safety

By doing this, you are meeting your statutory obligation to provide a safe place of work. But what about staff commutes, particularly where an employee has no option but to use public transport on their journey to and from work? Must you ensure these are safe too?

As far as the coronavirus situation is concerned, you are not currently under any specific duty to ensure that an employee’s commute is safe, i.e. you’re not legally obliged to carry out a risk assessment on their journey to and from work.

Statutory rights

However, it is quite possible that an employee who has to travel to work on public transport could argue that their commute places them at serious risk of harm from coronavirus, especially if they are travelling at peak hours. On that basis, they could refuse to come in altogether.

If this were to happen, you would need to tread carefully and you couldn’t simply dismiss the employee’s concerns or say they are overreacting.

Legal position

Under s.44Employment Rights Act 1996 employees have the right not to be subject to any detriment for refusing to come to work where they reasonably believe they are in “serious and imminent danger” .

Whilst this statutory provision hasn’t been tested specifically in relation to coronavirus, it’s arguable that employees could successfully rely on it (particularly in light of government guidance on travelling to work).

Tip 1. The employee’s belief about the serious and imminent danger only has to be reasonable in the circumstances; it won’t make any difference if you disagree with them.

Tip 2. What the tribunal will consider is the employee’s perspective. Those who are deemed to be extremely clinically vulnerable will have a good chance of successfully relying on the statutory protection.

What to do?

If an employee raises concerns about their commute, you should give careful thought to whether their job can be carried out from home. Where it can’t be, look at the employee’s concerns and see if they can be alleviated.

Tip. This could include relocating the employee to another site, providing face coverings for journeys and washing facilities in your workplace. Alternatively, based on the employee’s personal situation and health, placing them on a period of furlough may be the best option if they can’t work from home.

You’re not obliged to risk assess an employee’s commute. However, if an employee raises concerns, consider them carefully and see if they can be addressed. If the employee is classed as “extremely clinically vulnerable” and needs to use public transport to commute, consider alternative options, e.g. homeworking.

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