Will employment litigation derail recovery?

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May 15 2020 by Alan Jenkins Print This Article

Business owners are used to forging a path through uncertainty to develop successful businesses. Whether it be in judging future trends accurately or developing new products that people didnít realise they wanted, business owners take for granted that most of what they do can be risky, even in standard times.

The uncertainty that the UK government created on the 10th May, however, is of a completely different form, requiring business owners to take responsibility for decisions abdicated by the government and to face full liabilities for the consequences.

Having been hugely successful in frightening the population to stay at home, last week the government attempted to change track. Employers are now told to Ďactively encourageí their teams to return to work.

This abrupt volte-face has, in turn, placed employers in the position of having to encourage their team to return to work, within a febrile and unpredictable atmosphere, itself created by the governmentís lockdown messaging.

All this against a backdrop of inadequate and contradictory advice, both legal and governmental.

We can all agree that it is essential to get the economy moving again and to enable people to get back to work. By doing this, the country can maintain the economic activity which supports livelihoods and generates the tax revenue that pays for the NHS and other essential public services.

While getting the country back to work must happen, this must be done safely. This is why most people supported the governmentís approach of containing COVID-19 by mandating the strict lockdown imposed throughout the last few months.

However, faced with the choice of prioritising a strict lockdown to limit further the spread of the virus, or opening up the country to save the economy and mental health of the population, the government has tried to do both, resulting in the impressively vague Ďstay alertí slogan.

The result has been complete confusion about what the government wants us to do and what the rules are.

The dilemma is particularly acute for employers, who have been told to Ďactively encourageí employees to return to work, with almost no clarity about what this means in practice.

For instance, in my business Quadrant2Design which designs and manufactures exhibition stands for trade shows, we have put in place extensive measures to allow our employees to work safely. And we are fortunate in occupying 15,000 sq.feet of premises that makes it easier for employees to work while observing a safe distance from one another.

These measures do not, however, eliminate the threat of contracting COVID-19 at work.

There is always going to be a risk, both in the office and when travelling into work. Should we encourage employees to come in if their journey involves public transport? Should meetings be banned?

As an employer and business owner, here are some of my serious concerns:

  • If an employee refuses to return to work citing health and safety concerns, can I require them to attend, and ultimately discipline them if they refuse?
  • Should an employee allege they have caught COVID-19 at work, will I face investigation by the Health and Safety Executive?
  • In the worst case, could I even face prosecution for Corporate Manslaughter and with it, a possible jail term?

The government has failed to address these concerns, shifting these unfair liabilities onto hapless employers who are struggling to keep their businesses afloat during the crisis.

The risk in navigating these questions is that, by following the governmentís advice and encouraging employees to come back into work, employers will inadvertently open themselves up to the potential for punitive legal claims, fines, and maybe worse.

Before the COVID-19 crisis, we have seen an increase in employment tribunals of 64% between 2017 to 2019. Although many of these cases were legitimate, undoubtedly others were vexatious. All such claims are destructive to the businesses involved, diverting valuable time and money from positive activity that increases tax receipts for the government and supports employment.

Where is the reassurance, that given the contradictory and confusing governmental advice, that these numbers wonít skyrocket in the next few months?

In balancing these risks, employers may judge that it simply isnít worth the risk of opening up the business. Some may simply Ďcall it a dayí and never reopen. Others may open up and quickly find themselves overwhelmed with unfair and costly employment tribunal cases.

The government needs to urgently address its failure to provide businesses and staff with clear guidance. Employers must be given detailed information about how, and under what circumstances, they can return their team to work, and in a way that protects them from unwarranted litigation.

Moreover, legislation needs to be put in place to protect employers so that they can concentrate on saving their businesses.

This doesnít mean genuinely reckless employers should be able to get away with acting however they want. If businesses are forcing staff to face undue risks, and these practices need to be clearly defined; then clearly, there will be a case to answer.

However, in the vast majority of cases, where employers are merely trying to do their best to return to work safely, they should not be faced with the potential for future COVID-19 related claims.

Unless the government gets to grips with its message to the public and takes responsibility for the crisis, rather than trying to shift liabilities to employers, Iím afraid we will fail to restart our economy to the degree required and protect the livelihoods of our staff.

About The Author

Alan Jenkins
Alan Jenkins

Alan Jenkins is the Managing Director of Quadrant2Design, a specialist supplier of exhibition stands based in Poole, Dorset.