Your legal questions for our lockdown agony uncle answered
A significant number of new government regulations and schemes have created all sorts of uncertainties for individuals and organisations in the region.
Here, Tim Tyndall, partner in Stone King’s employment team and based at the Cambridge office, answers some questions from from companies about how the situation affects them.
1. This comes from a local company distributing drinks into hospitals and care homes. The staff are expected to work seven days a week without PPE. One employee says that if he refuses a shift he’s been told he will be sacked – no furlough, no pay-out. He has a partner with asthma and is very concerned about what to do. Do you have any advice for him?
PPE is an important issue not only for this employee but also those working at the hospitals and care homes that he is going into as part of his job. There is no easy answer I’m afraid. His employer really should understand his concerns and the ‘like it or lump it’ approach is not appropriate. One approach would be to request to be furloughed as he needs to stay at home with someone who is ‘shielding’ and this will not cost his employer, albeit his income will be reduced. However, given the tone adopted by this employer that is unlikely to succeed.
A more direct approach would be to allege (preferably in writing) that these continuing working practices are a danger to health and safety.
If he is dismissed for complaining or he chooses to walk out, depending on the exact circumstances, he is likely to have grounds for an unfair dismissal case in an employment tribunal for asserting his rights or removing himself from a place of danger. However, given the Employment Tribunals’ current workloads, that case would not be heard for some time.
If the employer were properly advised they would approach the issue much more constructively and take appropriate steps to address their employee’s concerns.
2. The question relates to a reputable firm in town which has asked its front-of-house member of staff to come in and continue her working pattern. She is expected to sit there all day, opening letters and fielding phone calls. Again, there are no protections, and there seems to be no opt-out – except leaving. She doesn’t feel comfortable doing this unnecessary job and this puts her in a difficult situation. What are her rights?
A key question here is can the employee do their job at home? If not, and some of the facts suggest she may not be able to, it all depends upon how much colleague and client contact there is and whether social distancing rules are complied with and enforced.
If they are not - and for example no consideration has been given to erecting screens - and if she feels in danger, her only route would be (similar to the previous question) to allege, preferably in writing, that these continuing working practices are a danger to health and safety.
If she were then dismissed for complaining, depending on the exact circumstances, she may have grounds for an unfair dismissal case for asserting her rights.
However, her case is unlikely to be heard in an employment tribunal for some time and would come with uncertainties.
If, however, social distancing rules are enforced and there is no contact with others at her place of work, the employer may be in a strong position to contest such a case.
3. Sawston-based motorcycle training organisation CamRider says that it can’t get motorcycle tests organised for people because motorcycle trainers are not key workers. Founder Bernard Adams has contacted his MP and other government agencies without receiving a response. Is it possible to make some sort of application for key worker status or can it not be revisited?
Key worker definitions are quite specific and Bernard is right that his trainers are not defined as key workers. There is no “application process” and the only answer is to continue the lobbying already undertaken.
It is unlikely, however, that this would be seen as an essential service as the guidance for the transport sector is clearly aimed at keeping public and freight transport going during the pandemic.
- Email email@example.com with your questions.