Can employers discourage employees from having informal get-togethers when the pubs & restaurants reopen?Posted in : Seamus Says - Employment Law Discussion on 3 December 2020
Q: Can we actively discourage employees from having any informal get-togethers when the pubs, or the restaurants, if you like, reopen after the 11th?
Scott: This one is for employees who would have met up at some stage at this time of year and get together. Is there anything that employers can do when it comes to groups of employees saying, "Sod it. We're going to get together. The restaurants are open next week"?
Seamus: Well, I think it's similar to the situation that we've been dealing with throughout whenever there was a relaxation of restrictions back in July and August. There's no doubt the message is clear that the more people that you mix with, the more people that you come in contact with, the higher the risk is involved of getting the virus. And so you can completely understand the anxiety that the Christmas period would bring about for employers, particularly where employers are saying, "If we risk self-isolation . . ."
I've got a family member of mine that runs a business and has had 14 employees out, and a relatively small business, all self-isolating. And they were able to push their way through it. But at the same time, they weren't far off the point of having to consider closing their business. So you can understand where employers are coming from.
At the same time, it has to be balanced off by the fact that employees are entitled to their private life, and it's not normally appropriate for an employer to dictate what the employee will do outside of the workplace.
And we do know that there are the obligations not to bring the business or the company or the employer into disrepute and things like that.
I think in one of our last podcasts, we talked about the worker who is employed in the care home who then witnessed mixing or taking part in activities that would maybe be in breach of regulations and the impact that could have upon their employment. But the reality is it's very difficult for the employer to prevent employees from undertaking those behaviours that we might frown upon, really unless there's some sort of breach of a disciplinary code or procedure. And I suppose it's looking at our disciplinary codes and procedures, looking at our contracts, and seeing what they say.
Outside of that, we're all aware and we've all heard of the actions of some that could really place others at risk. And at times, we've heard at risk of life. Certainly, we've seen some of the accountability of all of that on social media and in relation to the media itself. We've seen these sort of high-profiled people that have had to come out and apologise because they've breached regulations and things like that.
Here, we're not really talking about anybody breaching any regulations. We're aware that restaurants are going to be open. Wet bars are not permitted to be open come next Friday, but restaurants are going to be open and that may encourage people to say, "Look, the office isn't doing a Christmas party this year, but there are five of us in our team. We'll go out on Friday evening and we'll grab a bite to eat and we'll have a couple of drinks". And it's the risk then for the employer to say, "Well, what does that mean? Does it mean that whenever you come back, that your department could be at risk of one or more of you catching the virus?"
I think, again, it's about actual discouragement. I don't have any difficulty with that. I think the employer is entitled to raise their concerns with the employees and, again, have those conversations. But you need to be very careful as the employer that you're not overstepping the line and coming to the point where the employee is feeling threatened or harassed, or that the employer is taking it too far.
And I'm thinking there, really, about the likes of employees then that would feel that the behaviour of the employer could result in a breakdown in their relationship and should be… dismissal claims.
That said, there may be some circumstances where disciplinary action may be possible and where there is knowledge of bringing the business into disrepute as a result of actions and things like that. But those general sorts of ideas of "Let's get together outside work" or "Let's go to each other's houses" because that might be permitted, although it's not, but the idea of mixing, I can understand that it does cause employers concern.
I think as well the other thing is that it's important that employers do make employees aware of the possible ramifications of their actions, and it could result in the business or the workplace having to close. We're thinking about periods of self-isolation for the business that could cause real financial difficulties for the business itself. And the risk to your other colleagues and, again, your risk to your colleagues and their families that they live with, and the risk also to any clients or customers or residents in a care home that they would come into contact as well.
But it is a difficult one to enforce and I think that the best the employer can do is, again, inform and advise and give as much sort of positive feedback as they can without coming across to the point where they are harassing employees or creating difficulties in the relationship.
Scott: I suppose it comes down to communication as well. There are a couple of questions in here that you've kind of covered, such as, "In relation to employees outside the workplace, can we send a reminder of guidelines to encourage them to limit their contact?" You said yes, but I suppose it comes down to what's the relationship and what's the impact. Because if people have to self-isolate because they've met somebody who tests COVID, and they've got the app, or they've been contacted by somebody, it's that self-isolation that can cause an awful lot of problems for employers.
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