Government guidance as at 29 May 2020 states that employees able to work from home should continue to do so. However, those unable to effectively work from home should start to return to work. This presents an unprecedented issue for most employers as employees are likely to be at risk using public transport at peak commute times.
Our existing employment laws did not have a pandemic crisis in mind. Employers do not have any statutory legal responsibility for an employee’s journey to the workplace. Our health and safety legislation such as the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 are limited to covering only the risks which employees may be exposed to at work – not the risks they may face whilst travelling to and from work.
The government guidance covers work-related travel, but not travel to and from work, although it does say that employers should adjust arrival and departure times to reduce crowding into and out of the workplace and introduce measures for alternative ways of travelling, such as by cycling or even driving into work (if appropriate).
The pandemic crisis is presenting us with a most unusual situation of possible significant public health risks associated with using public transport. Employers should assume that the courts might determine that implied duties of care, as well as the need to maintain trust and confidence, mean that employers may be at risk if the ground on risk assessment is not properly covered. Safety assessments being carried out to plan re-opening the workplace should factor in risks associated with the employees’ commute and what protective measures employers are taking, such as alternate modes of travel to avoid public transport, adjusting working hours to avoid peak times, and providing access to PPE.
Most employees will be anxious about using public transport. The capacity of the public transport network is going to be very restricted – so there are good reasons for employers to do what they can to ensure that employees can get to work, and can do so in the safest way possible. The government has issued guidance on safe travel which employees should consider before commuting. We recommend employers circulate the guidance to their employees as part of a risk assessment.
To address risk, employers must plan at an early stage to be able to consider the risks inherent in using public transport, to ensure there is due consideration for the safety of their employees whilst they commute to and from work, and to leave sufficient time before the return to work to include consultation with employees on this important issue.