For many organisations, such as those in the hospitality and leisure sectors, the wait will be longer, but the return to some kind of ‘business as usual’ is already raising many legal questions.
In episode seven of Airmic Talks, BLM partners Julian Cox and Phillip Carney talk through the risks, liabilities and insurance responsibilities in relation to secondments, the possibility of the Transfer of Undertakings (Protection of Employment) regulations (commonly referred to as TUPE) becoming particularly relevant and the impact on business immigration requirements.
On the possibility of claims made by employees upon their return to work against their employers, Mr Carney says these could be made in relation to duty of care, breach of duty and causation.
“Causation will be a hot topic. How does the employee prove that they contracted COVID-19 due to their employers breach of duty rather than in the wider community particularly given the issues with testing,” he explains on the podcast.
“The employee will need to prove on balance that it was sustained in the workplace by the employer’s negligence rather than the community. Expert evidence could be important. It might be easier for an employee in a healthcare setting to establish causation than an employee in say a logistics setting.
“Testing will become more important with this. The claimant should be expected to have a positive test to prove their claim. It will be necessary to consider what the claimant is doing outside the workplace in terms of family that they are living with or shops that they are visiting. Claimants might try to argue that their employer has materially increased the risk in a similar way to asbestos litigation. In asbestos cases we know it was in the workplace.”
To listen to this full episode of Airmic Talks, find it on SoundCloud, Apple Podcasts, Spotify or any other podcast app.