Employment law was not designed to adjudicate in the kinds of disputes that lie aheadby Schona Jolly / June 5, 2020 / Leave a comment
Lockdown raises legal questions which “common sense,” British or otherwise, cannot determine. A government whose grip is visibly faltering naturally pretends things are easy. But as it unlocks the economy, tricky new questions will arise, especially in the employment arena, where employees and employers are making practical choices with potentially dramatic consequences on both sides.
Bewilderment and fear are to be expected in a pandemic, and the government’s rapidly-changing guidance and lack of transparency does little to build the trust that is so important for engendering co-operative attitudes in the workplace. Facing multiplying financial, physical and psychological strains, both employers and employees will need to turn to law to identify their rights and obligations—but the law does not yet provide either with the clear answers they might expect. The stage is therefore set for a clash of entirely reasonable but different perspectives.
The re-opening of workplaces will test to the limit existing employment laws, which were not designed to deal with this pandemic. Take the phrase “health and safety,” which for most people brings the prevention of one-off accidents to mind—ensuring, say, helmets are worn to protect against falling masonry. Now it must permeate everything we do in our personal and our working lives. Indeed, for many, the distinction between the two is less clearly drawn than before the virus.
Employers retain all their legal duties, including those pursuant to health and safety legislation, employment and equality laws and whistleblowing. But without robust enforcement, workforces will harbour doubts about whether they are being properly protected. And robust enforcement works in two ways—through a tough health and safety regulator, and delivery of justice in a smoothly functioning employment tribunal system. Both avenues, under-resourced before, are even more strained now.
Confusion is likely to cloud one question above all others—that of who must and who may stay away from workplaces. A considerable number of workers will likely remain absent through self-isolation and illness, and the new track-and-trace system—requiring isolation for anyone who has come into contact with the infected—will redouble that strain for employers. But for those employees who are currently fit, there are other difficulties. Serious concerns may relate to commutes, if there is no reasonable alternative to public transport, as well as the workplace itself.…