The Treasury has reported that more than eight million UK workers have been furloughed since the Coronavirus Job Retention Scheme (CJRS) was introduced in mid-March 2020. The self-employed equivalent scheme has seen more than two million applications for grants so far, which could mean a total of approximately one-third of the working population of the UK are currently, or have been, furloughed.
Although there will inevitably be high numbers of redundancies brought about by insolvent businesses and reduced work in the ensuing economic recession, most workers will return to their previous roles over the next four or five months. One of the main challenges for employers is how they can resume operations safely to avoid the spread of infection and the heightened risk that the 2019 novel coronavirus disease (COVID-19) poses. It is also crucial because failing to provide a safe and suitable working environment is unlawful, giving rise to criminal and civil liability.
The measures that are necessary to protect workers are specific to each workplace and although the government has provided sector-specific guidance, the obligation is on every employer to assess and minimise the risk for their particular environment. There will be changes common across most businesses, including increased hand-washing and cleaning facilities to ensure good hygiene practices and separating or distancing workers to promote safe working.
All employers have a duty to protect their workers from harm. This involves assessing any risk to which workers are exposed and taking all reasonable steps to remove or minimise those risks. The Management of Heath and Safety at Work Regulations 1999 (SI 1999/3242) makes such a risk assessment mandatory.
During the pandemic and for as long as COVID-19 continues to pose a threat to illness, injury or life, special consideration will have to be made for the risk it poses. This includes thinking about which workers, customers, service users, suppliers and members of the public might be at risk, deciding how severe that risk is and determining the action that can be taken to remove or at least control the risk(s).
There is an expectation from the government that employers with more than 50 employees publish their risk assessments online and a legal requirement to write down a risk assessment where five or more employees are employed.
This duty on employers is a first step, but it is necessary to consult with workers when implementing the risk avoidance measures. What is conflicting between the various guidance and the legislation is whether employers are obliged to consult with workers collectively through representatives, or directly.
Consultation: the guidance
The Working safely during coronavirus (COVID-19) guidance published by the Department for Business, Energy and Industrial Strategy on 11 May 2020 states:
“You must consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. As an employer, you cannot decide who the representative will be” (emphasis added).
The ACAS guidance, which used to say “when planning to return to the workplace, employers must consult with staff and employee representatives” now says “Employers should ‘consult’ with staff (ask for and consider their views to try and reach an agreement) about returning to work” (emphasis added).
The Health and Safety Executive (HSE) guidance, Talking with your workers about working safely during the COVID-19 outbreak, states:
“In a small business, you might choose to consult your workers directly. Larger businesses may consult through a health and safety representative, chosen by your workers or selected by a trade union” (emphasis added).
Consultation: the legislation
Regulation 4 of the Health and Safety (Consultation with Employees) Regulations 1996 (HS(CE)R 1996) applies where the employer does not recognise a trade union. It states that employers can choose to consult with their employees directly or with elected representatives. There is no absolute requirement to consult “representatives of employee safety”.
There is clearly a desire from the government to encourage meaningful consultation and this is probably driven by two main issues. The first is that this is an issue facing the entirety of the UK; every sector, every business, every worker. The second is the statutory protections afforded to workers who are fearful of a return to work, or are otherwise unable or unwilling to return to work without reasonable assurances around their safety. We are likely to see employment-related litigation on health and safety related dismissals and detriments in unprecedented volume.
Unlike the provisions governing collective consultation in the context of a proposed redundancy or TUPE transfer, where consultation is required to take place with recognised or elected representatives, this is not the case with health and safety consultation legislation (despite the wording of the guidance and recommendations of the government and other relevant bodies).
Why does it matter?
As a general principle, for consultation to be meaningful, the parties have to engage. It is far more challenging to engage a workforce of hundreds or thousands than it is to engage with a handful of representatives. Consulting directly with many employees has logistical challenges and so it risks becoming a tick-box exercise rather than a two-way discussion. The danger is that consulting directly with employees is more reactive than proactive, inviting comments perhaps over email rather than explaining and challenging a particular measure or safety concern. Consultation is therefore much more likely to be diluted, perhaps ignored by many who see it as not something with which they should proactively engage.
Representatives often feel more empowered to speak up and are able to provide objectivity to another worker’s concern, without being distracted or dissuaded by emotion or fear. Similarly, opening up about concerns to a representative who is fighting your corner is far easier than challenging your employer directly about your concerns.
The primary aim of collective consultation is to try to arrive at an agreement. Consultation with individuals is practically less likely to enable a consensus decision. In real terms, consultation with the workforce as a group of individuals typically means informing them of the measures that are proposed to be implemented and inviting comment. A reactive form of consultation. This could make for a higher risk workplace with a confused, fearful group of workers who may in practice be less able to express their concerns.
Does that mean businesses will avoid collective consultation?
Collective consultation is often practically far easier for employers. It is a criminal offence not to consult over health and safety and so they can more easily demonstrate compliance through collective consultation, as opposed to making contact with each individual worker (some of whom may be working remotely or at home or on furlough).
Collective consultation is also favoured by unions and so it is likely that larger businesses particularly will consult collectively through representatives, rather than directly with employees. It is also why the advice from the government, ACAS and the HSE steers employers to consult collectively because it is objectively preferable.
However, as well-intentioned and persuasive as the guidance may be to encourage consultation through representatives, it is not determinative in legal action seeking to enforce workers’ rights. It may mean that where collective consultation is not delivering the agreement sought by an employer, they may choose to stop consulting collectively and do so directly with employees instead. The only limitation on a business seeking to do so is that they must inform the representatives that this is what they are doing (regulation 4(4), HS(CE)R 1996).
A safe return to work has never been so important to get right. Further restrictions imposed by the government could be catastrophic for a business and for the national economy. The CJRS enables businesses to take their time to properly assess the risks, consult with their employees and unions, and implement the appropriate measures. This may be by having test runs with small numbers of workers.
The risk to businesses of rushing their staff back to work without the right safeguarding could have fatal consequences for both the financial health of the business and, more importantly, the physical and mental health of their workers. For these reasons alone, it is vitally important for employers to engage their workforces in planning and implementing the changes necessary to keep them safe. Collective compliance is critical, even if collective consultation is not.