Legal jackals, vultures and carrion eaters gather ...

Pity the employer trying to get their staff back to work, particularly in London and in densely populated urban areas. Lawyers are gathering like vultures on a branch anticipating litigating Employment Rights actions. As a silk from Cloisters Chambers advises already -

By s.44(1)(d) and s.100(1)(d) ERA, employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act by their employer and the right not to be dismissed on the ground that "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work". Similarly, s.44(1)(e) and s.100(1)(e) provide some protection for employees where, "in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

Even asking staff to travel to work could raise in their hearts a "reasonable belief" that they would be exposed to "serious and imminent danger" - which would allow them to stay at home, and make unlawful their dismissal for not coming in. And that's just the tip of the iceberg.

Matthew Lynn continues the theme in the Telegraph this morning

There is a problem, however, and one that is going to become increasingly urgent as we lift lockdown. We have created a lawyer-dominated health and safety obsessed culture that may turn into our biggest enemy as we recover from Covid-19. Just think about some of the problems.

What if a restaurant hasn’t put the tables far enough apart to stop the disease spreading? Are they going to get a writ from anyone who gets ill? What if staff desks are not arranged the right way to protect people from infectious sneezes? Will the employer get hauled before a tribunal? What about those masks you finally managed to order, with great difficulty, and at huge expense? Do they really work, and are you liable if not? What if you ship a product to a customer, and then it turns out it contained traces of the virus? Is that your liability? The list could go on and on.

In fact the very last person I'd want to be right now is a City of London financial services provider with an office and trading terminals and staff. Staff who can't drive because there's nowhere to park, can't walk because they all live more than four miles away and can't even cycle because there's nowhere to put all the bloody bikes and a hot summer with a floor full of beefy traders sweating cobs in their lycra would probably also constitute some sort of H&S infringement. With only six people allowed in each tube carriage it would likely be 11.30 before they struggle in by public transport, anxious at having been breathed on by a Big Issue vendor.

Well there's a short term and a long term solution. The short term solution may be something like the one Matthew suggests in his Telegraph piece

We could fix that. Here’s how. First, we could ring-fence liability. If a worker or customer is diagnosed with Covid-19, a company should not be held liable for that unless it has been completely reckless (and even then, liability should be capped at £10,000 or 1pc of turnover, whichever is the lower).

Next, how about we ban no-win no-fee lawyers from trying to drum up business by exploiting Covid-19 cases. Law firms shouldn’t be allowed to tout for coronavirus business, and they certainly shouldn’t be allowed to start organising (potentially lucrative) class actions.

However, getting such legislation through Parliament will be painful, and you can be sure that Starmer will use every lawyerly and slithering trick to obstruct and sabotage it. He'll be in his element as a human rights lawyer.

The long term solution is to stop employing people, or stop employing so many of them anyway in dense city-centre urban environments. The third tier of AI may come a decade early, and PwC are already predicting high rates of replacement of financial services jobs such as asset managers, as AI will allow not only replacement of existing jobs but will, for example, "have made it possible to develop customised investment solutions for mass market consumers in ways that would, until recently, only have been available to high net worth (HNW) clients." says PwC. And presuming that anyone has anything left to invest at all after this, or that there is anything left worth investing in.

And then there are all those offices in the City and Isle of Dogs. I wouldn't like to own the freehold on a Canary Wharf tower right now; the longer term solution may involve mass redundancies and human flight from our packed cities, as workers become more aware of the risks of biohazards. The SARS-CoV-2 virule may be a relatively harmless little bugger, but the entire world is now rethinking bio risk in a packed and mobile world.

Muzzling the lawyers won't work. It will just be a short-term fix. And the internet and AI will play an unprecedented role in a quantum change in the way we live and work. This is going to be fascinating.