Desperate bosses and vulnerable workers: We face an imminent "clash of the reasonable"

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. Their safety will rely on the protocols and vigilance of employers. But after long weeks of closure, many employers will be desperate to reopen. How will they react to an employee who is not absent due to sickness, but rather (possibly justified) anxiety about picking up the virus at or on the way to work?

What makes sense to an employee may not make sense to an employer, and vice-versa. Even if the former has followed guidelines on social distancing, the latter may still fear for their safety. An employer may be entirely justified in asking that an employee return to work, in accordance with their contractual duty, while an employee may fear that they, or their loved ones, will be unacceptably exposed. So we may well find ourselves in the situation where an instruction is likely to be reasonable, and the refusal may also be reasonable. In employment law terms, that leaves both decent employers and fearful employees with difficult choices. Common sense does not, sadly, pay wages to employees nor perform work for employers. Where inevitable uncertainties arise, the law must therefore define the parameters.

The letter of the Employment Rights Act is not likely to resolve all such cases. While provision is made for employees to claim they have been unlawfully subjected to a detriment on health and safety grounds, or for automatic unfair dismissal, these provisions are not clear-cut, and are of course untested in pandemic circumstances.

And there are no comparable protections for many workers on insecure terms. Our precarious labour market rests on a great deal of temporary and agency work, many zero-hour contracts and the gig economy. The grave crisis in care homes gives a stark warning of just how exposed insecure workers can be, as well as a foretaste of wider problems ahead.

Many equality challenges also loom. The Institute for Fiscal Studies has found mothers are more likely to have quit or lost their job, or been furloughed, during lockdown. Compared with fathers, they are spending less time on paid work and more on household responsibilities. With huge uncertainty over school openings and the availability of childcare, the prime minister’s vague vow to do “whatever it takes to help get women back into work” will not make a practical difference to employers in need of staff, or mothers unable to work because they have no childcare. Given the limits of current legal protections, investment to remedy this is plainly essential. Some emergency moves have actually gone in the wrong direction—such as the free pass given to employers on the gender pay gap this year. As well as restoring transparency as a priority, there is a strong case for reconsidering positive action provisions to ensure women are not left behind.

Protections relating to whistleblowers are likely to require emergency reinforcement. At a time when workers may be exposed in a variety of ways, supporting those able to come forward in a range of matters, from a potential plethora of furlough-related fraud challenges to health and safety dangers, is crucial for the benefit of wider society as well as workplaces. Employment tribunals are already clogged, and while interim relief measures may be available, access to justice could be delayed. In order to get through a tricky interim, creative measures may be required, such as re-purposing HMRC’s tax-reporting machinery or enhancing the Equality and Human Rights Commission’s role.

The challenges, then, are daunting. It is not “common sense,” but widescale expert consultation that is required to help worried workers and stricken workplaces. Looming on the horizon, though, is a Brexit battle relating to deregulation of labour rights. Never could the timing be worse.