Article by Charlotte Walker-Osborn Head of TMT Sector and Laura Friend, Solicitor, Commercial.
What? A number of city centres were affected by the recent rioting, and businesses were a particular target. Therefore, it is clearly important for companies to consider whether adequate health and safety measures are in place to protect customers and employees from such situations.
So what? Although the recent situation is extreme, most businesses will be considering and putting in place suitable control measures.
What should you do to protect your employee and customers if such a situation arises again?
Businesses will need to consider any enhanced risk, over and above usual commuting, to employees travelling to and from work and whether that can be managed or eliminated by suggesting people do not travel. There is also the further risk of injury to employees, customers and any other occupiers of a premises if a riot occurs.
The degree of risk will ultimately be determined by the local police force, and part of the control measures should include a good line of communication with the police to establish if and when there is likely to be a threat. If, however, that information is not available from the police, companies will need to make an assessment of the situation based on the reliable information that is available and then act upon it. It is advisable for companies to record potential risks and the steps in place to reduce those risks as far as reasonably practicable.
The control measures should include:
- a means of communicating with employees out of hours
- identifying the people within the business who can keep abreast of local information and threats
- keeping employees, including any mobile employees, informed of the risks
- a plan to close and vacate premises if there is a significant risk
- a plan to close and secure premises if it is not possible to vacate.
By way of precaution, it would be sensible to check that all fire safety equipment is in good working order, that trained employees are reminded of the location of the equipment and that all fire exits are easily accessible. Current security measures could also be reviewed.
Employers will need to stay vigilant and protect their employees should a threat of violence increase.
How can you ensure that your employees come to work as usual?
If it is safe to travel and there is no unrest where your business operates, employees should be encouraged to come to work as usual. However, employers should be wary of putting too much pressure on employees to attend work in areas where the police or authorities suggest trouble is anticipated. Employers owe a duty of care to their employees and potential liability may arise if employees are pressurised into travelling to work when it is dangerous for them to do so or their place of work itself exposes them to risk of injury.
What if employees do not turn up for work?
A balanced approach should be taken between encouraging employees to make a reasonable effort to get to work and making them feel that they must do so in circumstances of risk or face disciplinary action.
Theoretically, employers could consider disciplinary action if an employee was able to get to work without risk but simply chose not to. However, except in persistent or blatant cases, employers may not want to devote the time and resources to investigate the circumstances of an individual worker's absence as a one-off in light of current events.
As for entitlement to pay, unless there is a specific clause in an employee's contract of employment saying that they will lose a day's pay if they cannot get into work for reasons beyond their personal control, or their pay is based on actual units of work undertaken, the employee would almost certainly remain entitled to receive pay during periods of absence due to periods of violent disturbance and looting. This is because employees have statutory protection against an unauthorised deduction being made from their wages: if the employer has no contractual right to deduct pay and the employee does not consent, deducting pay could potentially be subject to legal challenge.
Employers may ask employees to take a non-working day as part of their holiday entitlement, although they cannot force them to do so without giving sufficient notice unless their employment contract contains an express right for the employer to direct when holiday is taken. Employers may also ask employees to make up the lost hours on other days.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
