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Does an employer’s health and safety duty extend to the commute to work?

Makbool Javaid, Partner - Simons Muirhead & Burton

Employers should be well-informed when it comes to the wellbeing of their staff and know where and when their legal responsibility begins and ends. During the pandemic, the issue of the safety of the commute to work arose in light of the risk that travelling to work could expose an employee to harm from coronavirus particularly if they were travelling at peak times. However, the responsibilities of employers are much wider than putting measures in place to try to protect their staff from the virus, and they impact some sectors more directly than others.

The issue of staff safety while commuting is a major one for the hospitality industry given the late shifts that many employees often have to do. In Glasgow, there was a high-profile case of a female hotel worker being sexually assaulted after a Friday night shift, while she waited for a taxi to take her home. This happened after the hotel group ended a policy of paying towards taxi fares for their staff when they finished work.

Under S44 of the Employment Rights Act, employees have the right not to be subjected to any detriment for leaving or refusing to come to work in circumstances where they reasonably believe they are in ‘serious and imminent danger’ which they could not reasonably be expected to avoid. For these purposes, it does not matter if the employer disagrees with the employee, it is only whether the employee’s perspective is reasonable. Employers should take time to listen to individual concerns and to try and work with employees to alleviate them wherever possible.

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