The announcement by the Government that masks will no longer be mandatory in indoor public spaces and workplaces will be welcomed by many people but questions are already being raised about the obligations of employers in this area.
The rules on wearing a mask will change from 19 July, which is being referred to as ‘Freedom Day’. The day will also mark the end of the ‘work from home’ recommendations made by the Government and so, for the first time in more than a year many employees will be making a tentative return to the workplace.
Given the challenges that employers already face, it is important that they have the right policies in place from the get-go.
Employers must be somewhat wary of the relaxation of mask-wearing in the workplace as they still have both statutory and common law duties for the health and safety of their employees.
Under the Health and Safety at Work Act 1974, employers must ensure, so far as is reasonably practicable, the health, safety and welfare of all their employees at work. This obligation is also an implied term of almost all employment contracts.
As a result of this requirement, where employers decide to remove the requirement to wear the mask in the workplace they could potentially breach their duty as it may lead to an increased risk of transmission of COVID-19, especially if social distancing measures are dropped at the same time.
Employees also have a duty to take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work. If they chose not to wear a mask and were to subsequently increase the risk to one of their colleagues, neither the employee nor employer would be complying with their duty.
Even without the Health and Safety Act to consider, some employees may have personal concerns about working close to others without wearing a mask, especially if they are concerned about transmitting the virus to others who are unvaccinated or vulnerable.
Employers should try and communicate with these employees to learn more about their concerns and the reasons why they want others to wear a mask.
An employer has a duty of care to every employee and should listen to their concerns and ensure that they provide a workplace that is welcoming.
One practical way to get around this could be to mitigate the risk by providing employees with their own office room or, if it is a job where the work can be carried out from home, allowing them to work remotely upon request.
If employers have not taken any steps to minimise risk or to allay the employee’s concerns, the employee may decide to leave or stay away from the workplace.
If this is the case, the employee would be protected from detriment or dismissal if they reasonably believed that they were in serious and imminent danger under the Employment Rights Act 1996. However, a reasonable belief in serious and imminent danger must be established by the employee.
In more serious cases, employers could also face legal action and requests for compensation from employees affected by COVID in the workplace.
Although, this would depend on whether the employees could show that they contracted COVID from the workplace and the use of NHS track and trace could help with this.
Remember, a breach of any of the statutory obligations under the Health and Safety at Work etc Act 1974, will constitute a criminal offence by the company leaving it open to a range of sanctions and allow an employee to bring a breach of contract claim.
In most cases, employers are advised to take a pragmatic approach. They should start by conducting a COVID-19 risk assessment and communicate effectively with staff and unions regarding any safety measures they intend to retain or remove.
At HR Caddy, we can work with you to put suitable policies in place as your team begin the return to work. For information or advice on related matters, please contact us today.