Employee Refusal To Return To Work in face of COVID-19 ‘Threat To Safety’ – What Is Your Response?

By Nic Hart

01.05.2020

The effects of the Coronavirus pandemic on the workplace continue.  It is undeniable that the potential litigation arising out of COVID-19 will be far reaching and there will be several areas that Employers need to consider now and when the return to work phase commences in earnest.

In a matter of months the Coronavirus pandemic has not only changed the way millions of employees work but also the way they may now view the work place, particularly how safe they feel within their workplace.

Health and Safety claims may become a real issue for employers as employees either leave or propose to leave, refuse to return to work or take (or propose to take) appropriate steps to protect themselves or others from what they believe is serious and imminent danger from infection.

Section 44 of the Employment Rights Act 1996 prohibits an employee being subjected to a detriment in circumstances (under subsections (1)(d) and (e))  where  the employee reasonably considers that there is “serious and imminent” danger and they leave the workplace, refuse to return or take “appropriate steps” to protect themselves or others.

Section 100 of the Employment Rights Act 1996 prohibits an employee being dismissed in the same circumstances. A dismissal for these reasons will automatically be unfair.

Does COVID-19 represent a serious and imminent danger such that there is the potential for claims under s.100 and s.44? On February 10th 2020, the Secretary of State formally declared that coronavirus posed a serious and imminent threat to public health. Whilst this declaration was not made for the purposes of s.44 and s.100, it is likely it would be reasonable for an employee to consider that the risk of contracting Coronavirus was a serious and imminent danger.

For the purposes of section 44 and section 100 it will be what the employee reasonably believes at the time they acted, and it is irrelevant whether the employer considers there was serious and imminent danger or not.

Particularly relevant to COVID-19 is the wide interpretation the courts have given to “circumstances of danger” such that it may cover other employees as well as the workplace.

In addition, employees are not only protected against dismissal and detriment for taking appropriate steps to protect themselves and colleagues from danger they reasonably believe to be serious and imminent but also if they are protecting others. This raises questions regarding those who have refused to attend work on the grounds that they have persons living with them i.e. those who are shielding.

It should be noted that there is no period of qualifying service required to bring a claim under section 44 or section 100 and compensation is uncapped which means that employers must be very careful in dealing with any circumstances that may give rise to  a section 44 or section 100 claim.

If an employer observes health and safety laws, carries out risk assessments and communicates these steps fully to their employees they may be able to successfully challenge an employee asserting that they believed they were in imminent danger such that any action they took was “appropriate”.

The reasonableness of the belief held by the employee and the appropriateness of the action taken will depend on the advice given to the employee at that time. If an employee’s actions are disproportionate or unreasonable then they may not be protected under the statute.

In addition to any rights under s.44 and s.100 an employee and worker have a right not be subjected to any detriment for reasons of making a protected disclosure, such as the workplace is unsafe, under the Public Interest Disclosure Act 1998. Workers who ‘blow the whistle’ on wrongdoing in the workplace can claim unfair dismissal if they are dismissed or damages if they are victimised for doing so. An employee’s dismissal (or selection for redundancy) is automatically considered ‘unfair’ if it is wholly or mainly for making a protected disclosure.

For More Information

Please do not hesitate to contact Nic Hart , Liam Hutton, or another member of your Duane Morris London Team.