Health and Safety, Employee Privacy and COVID-19

Michael Pope

Written by Michael Pope, Consultant Solicitor

As we start to move out of lockdown and many employees return to work, employers will need to be aware not only of the health and safety issues with which they are now confronted, but also of the fact that data protection law is a potentially important consideration with regard to how they manage their new operating and working arrangements.

Getting it wrong could lead to breaches of the law and if employees are exposed to avoidable risks, detriment or dismissal for raising concerns about those risks, legal action against the employer is a possibility. This is not at all what an employer needs when they are facing extremely difficult challenges in recovering from the impact of the COVID-19 pandemic.

There are a number of difficult issues for both employers and employees. Here are some of particular concern.

Health & Safety

How to deal with:

  • Employees with underlying health conditions (both those known and not known to the employer) and those living with a vulnerable person
  • Employees having to travel to and from work on public transport
  • Employees having to deal with the public, particularly where they are in close proximity
  • Employees who might come into contact with people who have contracted the virus or are more likely to have done so
  • Social distancing and the use of shared facilities in the workplace

Data Protection

How to deal with:

  • Requesting personal health information from workers including a requirement to self-declare symptoms of COVID-19
  • Requiring workers to undergo health checks and tests relating to COVID-19
  • Sharing health information including details of employees with COVID-19 symptoms within the organisation
  • The introduction of the new NHS tracing app and whether employers can make use of this

Employees who believe their employer is not meeting its legal duty to protect to their health and safety at work have legal protection against detriment and dismissal in certain circumstances if they raise these concerns.  Also, a lack of consistency in response to employees requesting different working arrangements may constitute unlawful discrimination. This is potentially problematic in the case of employees who are disabled and it may also be relevant in cases of maternity and for older workers.

There is considerable concern about the lack of clarity from the Government in relation to the difficult question of how to approach safe working arrangements as we emerge from lockdown. We are advising clients in relation to those issues and with regard to how to approach the data protection problems arising from the pandemic. We also provide advice and assistance on the many other day-to-day issues that can emerge from the health and economic crisis.

For more information, please email mpope@grantsaw.co.uk or contact Michael on 020 8305 3540.