Written by Brabners LLP
Covid has resulted in many challenges for employers, one of which is a potential wave of whistleblowing claims. Covid has caused unavoidable tension between some employees and employers particularly with respect to use of the furlough scheme and workplace health and safety.
A report published by whistleblowing charity Protect has revealed that 20% of employees who raised concerns about furlough fraud and covid-19 health and safety measures were dismissed as a result of their actions.
Depending on the circumstances, these employees may be able to bring claims against the employer at the Employment Tribunal, and as such employers need to be aware of their obligations when dismissing employees who have raised concerns.
As the nation comes out of lockdown 2.0 and fatigue surrounding Covid-19 is evident, employers need to stay alert to their obligations to ensure that their workplace is Covid secure and that the rules with respect to claiming under the CJRS are complied with. Personal circumstances for each employee are unique and can change quickly and thus employers need to be alert to this; for example, some employees may have caring responsibilities meaning they turn down assignments or cannot turn up to work at short notice, other employees may have particular vulnerabilities as a result of their ethnicity or underlying health complaints. Employers are encouraged to deal with employees in a tailored and sensitive way, addressing each situation on a case by case basis. Not only will this help protect their business from the risk of legal claims but it will also promote good employer-employee relations.
From a legal perspective, employers have an obligation, which is implied into every employment relationship, to protect their employees’ health and safety. Employers also have a duty to maintain trust and confidence. In addition, employers are subject to certain specific statutory requirements to protect health and safety at work.
From the employee perspective, they have specific protection from being subject to detriments, or being dismissed, in circumstances where they have raised health and safety concerns. To secure the benefit of this protection, employees need to establish they have a reasonable belief that their health and safety is in serious and imminent danger.
In the current circumstances, it is possible that an employee’s refusal to attend work or turn down an assignment due to a belief that they will be at risk of contracting covid-19 could trigger the statutory protection, where the employee has a reasonable belief in serious and imminent danger to their health and safety. In this scenario, an employer would be prevented from putting employees at a detriment as a result of raising these concerns. As such, if these provisions apply it would be unlawful for an employer to withhold pay from an employee who refused to attend work due on these grounds. Similarly, a dismissal in these circumstances would be automatically unfair. Employers should therefore carefully consider an employee’s justification for failing to attend work before taking decisive action.
Employers across the country have taken advantage of the CJRS however, concern has been voiced that not all claims made under the CJRS have been legitimate. The Government believes that as much as £3.5 billion has been paid out in wrong or fraudulent claims (‘furlough fraud’). As the Protect article states, employees who report employers for committing furlough fraud could be protected from dismissal or from being subjected to any detriments for speaking out through the whistleblowing legislation. Again, employers need to ensure concerns raised by employees are taken seriously and investigated.
As the risk of redundancies loom and the number of employment tribunal claims continues to rise, it is imperative that employers understand their obligations when making redundancies and follow the correct processes. Employees who have raised concerns about their employers’ use of CJRS, or their lack of compliance with health and safety obligations with respect to Covid-19 workplaces, could seek to assert that raising these issues was the real reason for their dismissal. In the current backdrop, any procedural deficiencies could therefore leave employers exposed; not only to standard unfair dismissal claims but also to specific claims under the whistleblowing or health and safety obligations.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership
