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By Vicky Milner, partner, and Nour Belal, English solicitor, at Viberts
AREN’T we all over Covid-19 now? Evidently not. While most Covid-related restrictions have been lifted, the Office of National Statistics estimates that more than two million people are still suffering from the effects of long-Covid.
Aside from the health effects, we cannot ignore the impact Covid has had on how we work. It is understood that 53% of global workers are now more likely to prioritise wellbeing over work than pre-Covid (Microsoft Work Trend Index 2022), with 62% preferring a mix of in-person and remote work (Eden Work survey).
With radical workplace changes, employers and employees need to continue to keep health and safety requirements at the forefront of their minds.
It takes two to tango – legal duties of employers and employees
The Health and Safety at Work (Jersey) Law 1989 (the Law) imposes a general duty on employers to ‘ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employer’s employees’.
The law also imposes a duty on each employee ‘to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work’.
While health and safety prosecutions of employees are rare, they do arise where employees have entirely failed to meet their individual obligations. For example, in the UK, Terrance Murray, a scaffolder, was taken to court after being seen working at height without having erected edge protection required by law and having failed to connect his harness to the scaffolding or building.
Prosecutions in Jersey
Partly as a result of Covid, in 2021 there were more Health and Safety Inspectorate prosecutions in Jersey than ever before. The majority of prosecutions related to contraventions of the employer’s general duty to ensure the health and safety of employees, with fines ranging from £2,000 to £350,000.
It is important to note that the employer’s duty under the law only extends to taking steps ‘so far as is reasonably practicable’. If an employer can show that it took appropriate measures to ensure the wellbeing and safety of staff and the public, this will significantly reduce the risk of a successful prosecution.
Need for legislative compliance
Sometimes employers have to balance one set of legal obligations against another. That was the position in a case where Jersey Heritage had to juggle its statutory duties in relation to Covid while also trying to address employee concerns.
Mr Pallot was dismissed by Jersey Heritage for not wearing a face mask at work. He claimed he could not wear one as it caused him anxiety (a potential disability), which he said made it dangerous for him to drive the amphibious vehicle to and from Elizabeth Castle. The tribunal decided that it was not unlawful to dismiss Mr Pallot as the employer had no choice but to require him to wear a mask given Covid regulations. On this basis, there was no disability discrimination and no automatically unfair dismissal. The tribunal accepted that it was necessary for the employer to ‘fall back to the letter of the law’ and that ‘safety from spread of the pandemic was correctly foremost in everyone’s priorities at the time’.
Conclusion
The way we work may be changing but when it comes to Covid ‘it ain’t over until it’s over’. Viberts regularly represent clients in health and safety prosecutions, workplace investigations and disability discrimination matters.
