Contractors’ Questions: Should contractors be travelling to and from work during covid-19 lockdown?

Contractor’s Question: The main employer in my area is a large refinery, manned by approximately 2,000 people, mostly contractors from cities in the north of England.

What are the coronavirus-related rules from the government as to what these contractors should do when they have their monthly ‘long weekends’?

Currently, many contractors are traveling back to Middlesbrough and Newcastle to their families and then coming back to work -- to the refinery. Given the still significant risk of transferring COVID-19 to others, is this the correct practice, or are the contractors -- and the refinery, at risk of legal challenge?

Travelling up and down the country and back to a confined workplace is surely very foolish; if not negligent. What are the rules on this that contractors or the refinery should be adhering to?

Experts' Answer: While there is ongoing uncertainty as to how the current government COVID-19 guidance (which on social distancing was updated on May 1st ), is to be interpreted, it is likely that the practice of contractors traveling to/from their homes is acceptable, even if their homes are some distance away. This is because it would be classed as ‘essential travel’ provided they are unable to work from home.

'I won't be in today...'

In the event that a contractor did not feel able to return to work after the weekend break, any concerns should be raised directly with the refinery company, or indirectly via an agency if appropriate. Any failure to attend work would usually be dealt with under the terms of the contract with the company, and non-attendance by the contractor may amount to a contractual breach unless there were valid grounds for refusal. 

If they had specific health and safety concerns about working practices on the refinery, this may justify non-attendance. For example, if the company was breaching its ‘duty of care’ and not providing a safe place of work (for example, if it breached future government guidance about working practices put in place after lockdown is lifted). However, it is likely any health and safety concerns would first need to be raised under the company's health and safety policy or in extreme cases, with the Health and Safety Executive (HSE).

For those long weekends

Once an individual refinery contractor is home, they will be expected to comply with the official social distancing guidance during their long weekends. If individuals fail to do this e.g. by seeing family members outside of their household, then this could be seen as a breach of the government’s guidelines and they could be at risk of enforcement proceedings (including injunctions), being taken against them. 

For example, the Anti-Social Behaviour Crime and Policing Act 2014 (Act) allows housing providers (such as social housing organisations), local authorities and a chief officer of the police to apply for injunctions against those breaching the guidelines.

Enforcement

It may also be possible for individuals who do not fall within the scope of the act to enforce government guidelines by alternative means, such as applying for a common law injunction against a non-compliant party.

However, this would not necessarily be straightforward (particularly given how new the guidelines are), and there are significant cost implications associated with applying for injunctions. In the absence of any further guidance/enforcement options, it is therefore likely many people will raise these concerns directly with housing providers, local authorities or the police, in the hope they will take action under the act.

The experts were Jo Handler, senior associate specialising in employment law, and Suzanne Gregson, partner specialising in Housing & Regeneration, both of legal advisory Brabners LLP.