Not every issue raised about health and safety in the workplace will constitute whistleblowing. For an employee to be a ‘whistleblower’, they must be reporting information that they believe: a) reasonably shows certain types of wrongdoing by the employer, and b) is in the public interest.
This includes things such as criminal activities, as well as health and safety breaches. If an employee has met these requirements, they are protected from suffering a detriment, such as disciplinary action, as a result of making a protected disclosure and can bring a claim if they feel they have been treated unfairly because of it.
The Employment Rights Act 1996 states that employees have the right to not be subjected to a detriment or dismissed for raising concerns in situations where they ‘reasonably believe’ that there is a ‘serious and imminent danger which they could not reasonably have been expected to avert’.
Therefore, whilst an employee who has no specific concern but says they generally do not feel safe isn’t protected, one who points to an identifiable issue, such as an evident lack of social distancing measures or sufficient hygiene controls within the workplace, could be.
Employers will need to be careful when handling such concerns, especially if the employee subsequently refuses to come to work because of it.
Dealing with vulnerable staff and refusals to work
Since the easing of national lockdown restrictions and businesses reopening – yet with a continued level of risk – we are seeing some employees raise concerns that they do not want to come into work because they do not think it is safe to do so.
Often the employee has a heightened risk profile, such as suffering from an underlying medical condition, being of a certain age, and/or being a member of the BAME community. They’ll be quick to judge how safe it is to return to work, whether that’s in the office or in sellers’ homes.
The key point, if you find yourself as an employer in this situation, is to determine whether the employee holds a ‘reasonable belief’ about danger in the workplace. Whether that belief is reasonably held will depend on:
What steps you have taken to ensure the health and safety of your employees, particularly those in vulnerable groups;
What information has been provided to the employee; and
What has been done to reassure the employee that they are not in fact in serious or imminent danger.
Undertaking an individual risk assessment can help to assure an anxious staff member who feels they are particularly at risk – it can pinpoint specific concerns, and this can often bring about a quick resolution.
If other employees willfully ignore health and safety measures, there could be disciplinary issues to consider.
Further detailed guidance on navigating these scenarios is available on the Coronavirus Advice Hub.
Of course, the risk of regulatory enforcement, whistleblowing claims and refusals to work can all be greatly reduced by ensuring that regular risk assessment, associated control measures and clear communication to staff and customers are in place.
These continue to be challenging times with much to contend with at once. However, by treating safety as the top priority and taking a proportionate, proactive and collaborative approach to risk, you can minimise HR headaches, develop a strong local reputation and relationship with customers, and focus on your commercial success.
*James Tamm is Director of Legal Services at Ellis Whittam, which supports estate agents around the country with Employment Law, HR and Health & Safety.