Employers Duty of Care

All Employers owe a duty of care to keep its staff safe so how should UK employer’s be reacting to this crisis?

All Employees are entitled to a duty of confidentiality ,under The Data Protection Act 2018 and the terms of their employment contracts, so if someone doesn’t want their links to the crisis known this must be respected.  However, there is nothing wrong with an employer reaching out to staff to offer support. Some staff may need time off or emotional support or Russian nationals living and working in the UK may fear reprisals or harassment and so opening the door and offering support at this time is appropriate. 

Many employers will already have policies in place about bullying and harassment ; health and wellbeing, compassionate leave and disabilities for example , if not, now is the the time to address this how this is communicated staff needs urgent consideration. Right now safety and the wellbeing for staff should extend outside the work place , more than ever, but this is only going to possible if the employee informs the employer of their personal struggles and issues. Mental health is often a silent disability so an employer should have an open door culture and/or nominated person who staff feel comfortable to speak about their issues with in confidence. Perhaps it might be necessary to refer them to an occupational health advisor or make reasonable adjustments. Employers need to be alert to depression and metal illness and to make reasonable adjustments accordingly .  They also need to ensure it monitors behaviour in order to prevent any discrimination where this crisis might create hostilities amongst staff , management or otherwise so it must ensure it remains vigilant 

What support could employer’s offer?

Employers could bring in external counsellors or medical staff to talk to staff or refer staff to third party support groups. This must all be confidential and it’s best to reassure staff what they discuss will not be passed to their employer.

Perhaps employer’s could look to proactively offer flexible working , remote working, additional time off or time to take personal calls at this time . It may also become important to consider bereavement time off and/or counselling.

If the employer has both Russian and Ukraine workers , it may also ,need to be sensitive to how and if and how they can work together at this time ; and how it supports both sensitively . 

Legal requirements on employers

There is no legal requirement for an employer to provide counselling or medical support unless there is a real live awareness of a medical condition or possible disability . However,  depression , emotional wellbeing should be triggering employers to be on alert and offer support where it can. The 1974 Health and Safety at Work Act specifically guides employers that it has a duty to do whatever is ‘reasonably practicable’ to protect the health, safety, and wellbeing of their employees.

They do though also under The Equality Act 2010 have a legal duty to consider reasonable adjustments if this could be a disability and they must not treat them unfavourably as result thus discriminating against them. 

Social Media 

This is clearly troubling many people , but some think it’s acceptable to voice opinions that are bordering on hate crime, conspiracy and inciting violence.

Employers will generally have a social media policy , which will normally state that you must make it clear that any posting is a personal post and not the opinion of the company. This could be more important than ever and something employers need to reiterate ; check its policies  are up to date and robust, as well as communicated to all staff . If postings by staff could and do constitute bullying to other staff it will also have a duty to act.

Business disruption & the supply chain 

We expect to see significant disruption for businesses supply chains given not only the businesses directly affected in the Ukraine but also sanctions with Russia and as a result many businesses such as Apple deciding to cease trade with Russia and Russian businesses. 

From a legal perspective if your business is affected as a result of what is happening with the Ukraine you should check your contracts carefully to see if you have a force majeure clause and what this says. Many contracts contain provisions for suspending or terminating contractual obligations as a result of circumstances outside of your reasonable control, often known as an ‘act of God’. War is usually considered to be force majeure but how removed you are from the conflict will make a significant impact on whether you can rely on a clause like this. Force majeure events are for when you are unable to perform the contract due to circumstances outside of your control, these are meant to be exceptional and rare, it would not for example enable you to try and avoid contractual recourse just because it would cost more to purchase goods elsewhere. 

Businesses should also look at their insurance policies to see if this affords them any protection ; assistance or financial support.

What to do if your supply chain is disrupted

Whilst most of the World stands in solidarity with Ukraine you may find your business supply chain has been disrupted  and you are contractually obliged to perform your contractual obligations.  

In the first instance having a proper conversation with your contracting parties is essential. It may be that you can agree to a time extension for a delivery, for example, if a route has been disrupted because of the conflict or you wait for producers in Ukraine. However, any agreement should be properly documented. You may also have to look for alternative producers as a temporary measure whilst those in Ukraine turn their efforts to defending their country. As above most Ukrainian businesses are likely to be able to rely on force majeure clauses to suspend or terminate contractual obligations. With this in mind , if you are contracting with a Ukrainian business you should contact your insurers to check whether you have any cover in these circumstances. 

What if I contract with a Russian business 

As a result of heavy sanctions on Russia and certain Russian persons you may find your supply chain or business disrupted. As inflation soars in Russia and Russian businesses feel the repercussions of sanctions on their economy it is likely to have a serious knock on effect on businesses.   Despite high profile businesses declaring that they will cease trading with Russia and Russian businesses if you have a contractual relationship with any Russian person or business, whether as a customer or supplier you should take specific legal advice before you look to try and terminate any agreement.  If you breach the terms of any agreement you may find yourself in Court as a result. 

Further given Russian banks have been prevented from using the Swift system you may find additional hurdles to overcome when trying to pay someone in Russia or being paid if you have Russian clients.

Finally , you should keep abreast of sanctions to ensure that you not restricted from being able to trade with a certain individual or business. This is an exceptionally fast moving area and it is important if you trade with Russia or Russians you keep this in mind and under review. 

 Conclusion  

Many businesses had hoped to be able to focus on growth in 2022, two years after the crippling Covid-19 pandemic, but it seems that most businesses will now be affected by the conflict in Ukraine whether their supply chain has been disrupted or not due to increasing inflation and already rising fuel costs.