Fearful workers could unleash a barrage of legal claims against their employers as the economy reopens - potentially putting Britain's recovery at risk.
Staff and unions are expected to fight back against demands to start commuting again due to fears it could endanger workers. A string of lawsuits could hamper firms’ efforts to restart operations and return to profitability.
The Government published long-awaited guidance on Monday outlining the steps companies must take to make workplaces safe for returning staff, but unions warned that travelling to work will still be unsafe for workers using public transport.
Len McCluskey, general secretary of the Unite union, said: “Employers must not pressurise workers to imperil themselves and others by crowding on to buses, trains or tubes.”
After the Government urged people to avoid buses and trains, he warned that public transport would be unsafe as employees return to work on Wednesday.
Mr McCluskey said: “The Government is in danger yet again of sending mixed signals.”
“In a matter of hours, construction and manufacturing workers will be expected to return to work using a transport system that cannot yet observe social distancing obligations.”
The uncertainty threatens to expose mistrust between employees and bosses. A third of workers do not have confidence that their executives can navigate the Covid-19 crisis, according to a survey of 76,000 employees by consultant Karian and Box.
More than a quarter of workers said their employer is not supporting their health and wellbeing during the crisis.
Hannah Netherton, a partner at City law firm CMS, said firms face an awkward Catch-22 as existing employment laws may bar them from fully introducing the new workplace safety guidelines.
She said: “This leaves employers vulnerable to claims against them because in obeying the law they could not follow the guidance, but if they followed the guidance, they may be breaching employment rights.”
For example, changing starting and finishing times to avoid congestion could breach shift patterns set out in contracts unless employers meet requirements to secure agreement from workers, Ms Netherton said.
The guidance also explicitly warns employers they must respect the needs of different workers and that they will be breaking the law by discriminating on the basis of age, sex or disability.
Decisions around selection of staff to come back to the workplace could breach equality laws, Ms Netherton added.
Kathleen Heycock, partner at City law firm Farrer & Co, said that employers scrambling to get back up and running as lockdown is eased could face claims if they select which staff to bring back first based on what is “easiest”, leaving disabled employees on furlough, for example.
Requiring people to come to work if childcare is not available could also spark discrimination claims, she said.
Courts have consistently held that the duty of bringing up children still falls disproportionately on women and that employers must therefore avoid imposing measures that are harder for them to comply with.