Legal rights and coronavirus: retail and supermarket workers

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Supermarket aisle

Coronavirus is increasingly affecting our lives, which might leave you wondering what your legal rights are. Here, employment solicitor Ryan Bradshaw explains supermarket and retail workers’ rights.

As this pandemic sweeps the nation, supermarket workers are finally being recognised as key workers – put at an increased risk every day to keep everyone else’s fridges and cupboards stocked.

So how do you protect yourself and make sure your rights are being enforced?

What can I do to minimise risk?

If you are in a customer-facing role you can ask to be provided with appropriate Personal Protective Equipment (PPE) such as face masks. Make sure this equipment is an appropriate size and properly fitted.

If you’re not in a customer facing role you might still wish to consider PPE. Also make sure you are six feet (two metres) apart from colleagues and customers.

The following points are worth remembering:

• Your employer has a duty of care over you, whatever your role and whatever crisis the retail sector is under. If you are unsure what steps they are taking to ensure your safety, ask them.
• Know your rights. Check government and union guidance as often as possible and review what provisions are in place in your workplace. How often are these updated? Have you been provided with proper information?
• Stick together. It is easier to speak out in a group. If you are part of a union, stay in touch with your representative and other members. Check in with other members of staff across different departments and stores if you can.
• Prioritise your wellbeing, and that of your dependents and family wherever you can. Don’t be afraid to tell your employer of any health concerns or vulnerabilities you or your family may have.

Am I at an increased risk?

Government advice (as of 30 March 2020) is that anyone at an increased risk from COVID-19 should follow social distancing measures stringently.

In reality social distancing might not be possible if you are working in a supermarket. But this doesn’t mean your employer can neglect your health and wellbeing at this time.

If you are at an increased risk, for example you are 70 or older or entitled to free flu jab, it’s a good idea to tell or remind your employer and request they make changes to your working conditions that help to protect you.

It might help to show your employer the government guidance and discuss what action needs to be taken to keep you safe.

If you are a member of a union stay in touch with them and follow their advice and guidance specific to your area of work. If possible, speak to your representative and make sure you’re reporting concerns to them.

What should I do if I’m pregnant?

Under government guidance pregnant women should also follow social distancing measures stringently. This includes working from home where possible, limiting face-to-face interaction and avoiding contact with all those displaying symptoms of COVID-19. This is because the risks to pregnant women and their unborn children are not yet fully understood.

Your employer has a duty to carry out a risk assessment that is specific to pregnant workers. If you are exposed to an increased risk of infection, you should ask your employer to carry out a full review of the risks and take any necessary action such as providing suitable alternative work or suspending you on full pay.  You can find guidance from the Health and Safety Executive on these issues and your rights here.

The Royal College of Obstetricians and Gynaecologists (RCOG) gives more detailed advice for workers in their first or second trimester (less than 28 weeks pregnant), with no underlying health conditions and for those after 28 weeks gestation with underlying health conditions.

Am I protected if I ask my employer to make changes?

Under the Equality Act 2010 you have the right not to be subjected to poor treatment as a result of your having one or more of the protected characteristics. This applies across nine protected characteristics but the most relevant at present are sex, disability and pregnancy and maternity.

If you’re concerned about issues in the workplace that you feel put you at an unacceptable risk then you have the right to request that appropriate changes be made to accommodate specific needs.

You should not be treated poorly as result of raising concerns that your employer is behaving discriminatorily.

What should my employer be doing to keep me safe?

Your employer must do everything reasonably practicable to ensure you are safeguarded at work. They should be proactive in minimising risk to both you and customers. This includes carrying out and reviewing risk assessments.

This is even more relevant as we navigate coronavirus. Given how quickly things are changing, risk assessments should be reviewed daily.

Employers must also follow public health guidelines. This means providing appropriate PPE, hand sanitiser and proper information and training about how and when they should be used.

If you are concerned about risk of exposure, contact your supervisor and request appropriate steps are taken.

What are my rights?

Employees are protected against detrimental treatment, and dismissal by your employer if you raise concerns about health and safety.

You might feel that a situation is too dangerous to subject yourself to. Before you make any decisions, review the circumstances carefully so that any action you take is not negligent. What do you know about the situation? What facilities are available to you? Have you been given any authoritative advice?

If you are briefed regularly on the dangers you face at work, are provided with all the necessary equipment e.g. face masks, gloves and other protective clothing, and allowed proper breaks it is likely to be judged as a mitigated risk.

If this is not the case and you are genuinely afraid for health and safety, it might fall under the scope of the Employment Rights Act.

If concerns about health and safety cause you to miss or cut short shifts you could be protected under this legislation.

What if I don’t feel able to work?

Currently, the government’s health advice is that you should not leave your house, including to attend work, if:

• you have symptoms of COVID-19, however mild. This applies for seven days from when your symptoms started.
• someone else in your household has symptoms. If this is the case, you must stay at home for 14 days even if you feel well. The 14-day period starts from the day the first person in the house became ill.

You should report your absence to your employer in the usual way. For COVID-19 you can get an ‘isolation note’ by visiting NHS 111 online, rather than visiting a doctor. This replaces the usual need to provide a “fit note” or “sick note” after seven days of sickness absence.

You are entitled to £94.25 per week Statutory Sick Pay (SSP) from day one of any sickness absence related to COVID-19.

You must self-isolate for at least four days to be eligible for SSP. If you are able to work from home and are well enough to do so, you should continue to receive your normal pay and don’t need to claim SSP.

You may have additional entitlements to sick pay set out in your contract of employment – these should not change due to COVID-19.

The Coronavirus Job Retention Scheme also confirms that people who choose to stay at home because they are at increased risk will be eligible for SSP even if they are not unwell.

If you genuinely and reasonably believe that going to work puts you in serious and imminent danger, you’re entitled to take leave and not return until the issue is dealt with. You should not be treated poorly as a result of taking this action, including being subjected to disciplinary action or dismissal.

Can I report wrongdoing?

You should feel able to bring genuine concerns about workplace issues, that you consider there’s a public interest in addressing, to the attention of your employer without fear of recrimination.

If you’re concerned about health and safety issues or a failure to comply with legal obligations at work, there are circumstances where you can share these concerns beyond your employer. This is known as whistleblowing.

There are strong laws in place to protect whistle-blowers, but the requirements are strict, so please consider them before making any external disclosure.

Useful websites

• NHS information on coronavirus
• Government guidance on infection protection
• Covid-19 and your employment rights
• GMB member briefing: Coronavirus
• TUC website 

This advice is correct at the time of publication (31 March 2020). This is intended as a general piece to give an overview of the rights and enforcement options under employment law and should not be relied upon as specific legal advice.

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