Covid-19 risk on building sites: what are my rights if the site is not a safe place, and there is not a safe system of work?

READ THIS ARTICLE IF YOU ARE CONCERNED ABOUT COVID-19 RISKS ON BUILDING SITES

Tonight (Tuesday 24th March 2020) the message from HM Government continues to be that construction sites can continue to operate but must implement the Site Operating Procedures, developed by Build UK and published by the Construction Leadership Council (CLC).

The CLC has confirmed that all construction sites should assess their situation and those sites that cannot implement the Site Operating Procedures published by the CLC should not remain open.

But what if you are an employee or worker who has legitimate concerns over health and safety, and your employer's ability to comply with the Site Operating Procedures published by the CLC. On a worst case scenario, an employee might be dismissed if they refuse to work in the light of those concerns.

Having discussed this issue with the employment law team here at Charles Russell Speechlys, we believe that various serious employment law risks are posed by employers that decide to dismiss employees that have legitimately raised concerns about the health and safety issues on the site(s) that they have been working on. 

Irrespective of the length of service of the employee, such an employee would be able to argue that their dismissal was for a health and safety reason, which is one of the few automatically unfair dismissal categories. Moreover, depending on the way the complaint was raised, an employee may be able to assert that their dismissal offends the whistleblowing legislation, which is another type of automatic unfair dismissal.

An employee can also apply to the employment tribunal for interim relief where they have been dismissed for whistleblowing, which effectively forces the employer to re-hire them until the case is heard in full. 

Both a claim founded on a whistleblowing or health and safety dismissal would allow a Claimant to pursue unlimited compensation (subject to proving actual loss), as unlike “ordinary” unfair dismissal there is no ceiling on compensation. It is also worth noting that workers (those who supply services personally but not on behalf of their own business to the “employer” as a client or customer) can also bring claims for whistleblowing.

Many construction workers that are not employees may still be classed as a "worker" and therefore be protected under the whistleblowing legislation. Even the genuinely self-employed are entitled under the Health and Safety at Work Act 1974 to a safe place and system of work. Businesses must therefore be mindful of these rights and the concomitant risk of claims, which generally have a limitation period of 3 months or so in the employment tribunal.