Call +44(0)161 941 4000
Call +44(0)161 941 4000
Whilst the UK has been fighting the ongoing Covid-19 pandemic for almost a full year, with face masks and social distancing very much the new norm, the UK's health and safety regulator is still being inundated with complaints around Covid-19 workplace practices.
The Health and Safety Executive (HSE) received almost 4,000 Covid-19-related complaints about workplaces in January 2021 alone. And this is not a new occurrence. Analysis by GQ Littler has found that, of the 5,585 whistleblower reports made to the HSE last year, around 48% related to concerns over employers' failure to implement social distancing measures and 8% related to insufficient personal protective equipment in the workplace.
The report also noted that 25% of the complaints about social distancing were filed in late 2020, which shows that there has been a sharp upward trend in covid-19 whistleblowing complaints against employers across late 2020 and into 2021. Most individuals who file complaints with the HSE are already aggrieved employees who have complained to their employer about their work environment.
Under long-standing government rules, people should be working from home if possible. A BBC investigation discovered over 60 suspected Covid-19 outbreaks recorded in offices in the first two weeks of the current lockdown in England. Data from Public Health England (PHE) has shown that offices have suffered more outbreaks than any other kind of workplace – over 500 across the second half of 2020, which is more than in supermarkets, construction, warehouses, restaurants and cafes combined. This had led to calls from trade unions for tighter restrictions on keeping offices open and tougher safety regulations.
Employers have a duty to ensure that employees are provided with a safe working environment.
Suppose the health and safety of employees are not safeguarded. In that case, this could represent a breach by the employer of their express duties under health and safety legislation, which can be a criminal offence.
It could lead to claims being brought by impacted employees in the employment tribunal, including automatic unfair dismissal claims for health and safety and whistleblowing reasons (whether they are dismissed or if they resign in protest). Be aware that successful claims of this kind will carry uncapped compensation awards. If employees are also put at a disadvantage by the employer for raising a complaint, even if they are not dismissed or do not resign, this could result in claims for unlawful detriment.
Aside from the legal and financial consequences of health and safety breaches and employee complaints, there is the risk that a poorly prepared business suffers a Covid-19 outbreak that disables its workforce. Perhaps worst of all, an employer's reputation is at stake - complaints lodged with the HSE can spark investigations, enforcement notices and prosecutions, as well as the HSE holding the power to name and shame non-compliant businesses.
Employers must be alert to employee complaints and comments around health and safety, as they could represent protected disclosures entitling an employee to whistleblower protections (see the comments on automatic unfair dismissal and unlawful detriment above).
A company can be held liable for any mistreatment a whistleblower suffers from colleagues for their protected disclosure (unless the employer can show they took all reasonable steps to stop such mistreatment from occurring). Therefore, it is prudent to have a robust whistleblowing policy that is communicated to all staff.
A prompt and serious response should follow a protected disclosure, reassuring the individual that their concerns are noted and will be investigated. The investigation typically involves interviews with the whistleblower and possibly other relevant individuals. The whistleblower should be reassured that their position will not be impacted. They are also allowed to have a colleague or trade union rep accompany them to meetings.
It is wise to maintain confidentiality throughout the process to protect confidential information and the whistleblower and the company's reputations. The whistleblower should be given a written outcome and, whether their disclosure is upheld or dismissed, they must not be penalised for having raised their concerns (unless the complaint was patently untrue and maliciously motivated, which may justify disciplinary action).
If any aspects of the disclosure are upheld, remedial action should be swiftly taken. It is also good practice to track the number and nature of whistleblowing complaints so that trends can be monitored and acted upon.
Employers may be able to head off any such complaints by proactively consulting with staff on their working environment and ensuring that robust health and safety practices have been communicated.
Employers should be reviewing their policies to make sure that there is a robust system of processes in place for covid-19 and workplace safety. Many businesses have already facilitated home working by providing video call software, laptops, mobile phones and at-home desk set-ups, while trips to the office are limited to only the most important business reasons.
Other businesses have introduced a raft of Covid-19 office safety measures, such as protective screens around desks, hand sanitisation stations, compulsory face masks and split shifts.
If you would like further information on whistleblowing in the workplace in relation to COVID-19, our team of Employment Solicitors would be happy to help. You can contact us on 0161 941 4000 or email The Employment Team for more information.