For the purposes of this Blog, the relevant legislation is Section 100 of the Employment Rights Act 1996 (ERA) and specifically sub-sections d) and e).  It’s worth setting out to begin with what those sections actually say:

(1) – an employee who is dismissed shall be …. unfairly dismissed if the reason (or principal reason) for the dismissal is that:

(d)        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; or

(e)        In circumstances of danger which the employee reasonably believed to be serious or imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.  

For the purposes of (e), (2) specifically draws the Judge’s attention to the steps which an employee took or proposed to take were appropriate being judged by reference to all of the circumstances, including the employees knowledge and the facilities and advice available to him at the time.  

It’s noteworthy that when judging what the circumstances of danger were, (serious and imminent), it’s the reasonable belief of the employee that is important and it’s not a question for the employer to need to agree. ‘Danger’ in this context is very widely interpreted and the actions of other employees will count.  

In terms of the Coronavirus situation, the Government has itself classified what is happening in the UK as a ‘serious and imminent risk’, so at least for now it seems that any employee would get themselves over that particular hurdle (The Health Protection (Coronavirus) Regulations 2020 being where the Government makes that declaration – by the Secretary of State on 10 February 2020, declaring that Coronavirus posed a serious and imminent threat to public health). It would be hard to argue, therefore, that an employee was unreasonable in believing there was a serious and imminent threat from Covid-19 in many different workplace situations. Covid-19 is a potentially deadly disease so it won’t be an attractive argument for employers to be trying to argue that the situation is not serious.

The employee who refuses to attend work, leaves work, refuses to return to work, proposes to leave work or takes other appropriate steps to protect themselves, such as saying that they would work from home will potentially be protected from dismissal. Any dismissal becomes an automatically unfair dismissal – they do not need any qualifying service and there is no cap on the compensation that they can be awarded.  

The employee would need to show a link between the protected action that they have taken and the dismissal ie:- that the reason why the employer dismissed was that protected action.

It will always be open to the employer to show that the protected act by the employee is not the reason for dismissal.

Where the employee has taken part in some form of protected conduct as described above and the employer undertakes some kind of retaliatory action, then the employee would also be able to resign using s95 of the Employment Rights Act to claim that they had been dismissed and use s100 in circumstances where actually they are the one resigning.

Section 44 ERA operates in a similar way to protect employees from actions short of dismissal, where the employee has been subject to a detriment, which means any negative occurrence as the result of a protected act in circumstances where the employee reasonably believes there is a serious and imminent danger etc.  For example, a detriment might be not being paid, disciplinary action, the application of disciplinary penalties but also actions such as bullying on the part of an employer.  

Both of these sections might come into play where, for example, the following circumstances apply:

  • A customer or service user is coughing or otherwise displaying symptoms that an employee fears might be Covid-19 related and the employee expresses a reluctance to serve that person.
  • The employee wishes to wear a mask but the employer wouldn’t let them.
  • The employee has concerns about social distancing in work and the employer’s ability or willingness to abide by the 2 metre rule.
  • The employee wants to work from home believing it is safer.
  • An employee believes a colleague is attending work with symptoms or when they live with somebody who is symptomatic, endangering others in the workplace.
  • The trade union is advising staff that it is not safe to return.
  • The employee wishes to remain on furlough because they are unconvinced about the measures being put in place for their return and that it is safe.
  • Furloughing an employee at 80% pay when they have refused to return to the workplace.

Whether or not the employee would have a good case in each of these scenarios will depend on a case by case assessment, depending of course on the kind of workplace, work involved and the steps taken by the employer. The law is quite pro-employee: if a Judge agrees that an employee has a reasonable belief, for example, that a service user sweating and coughing constituted a serious and imminent danger, he can take positive steps to protect others from danger, even if it is detrimental to the employer’s business – it will all come down to the actions taken by the employee and whether they were proportionate in the circumstances.

One of the steps that employers can take to improve their position will be to share information with employees. Given that ss(2) refers to the advice and knowledge available to the employee – publishing your health and safety risk assessments and sharing the plans that you are making as an employer with staff will put you in a stronger position. It may well be that for those employees with a specific condition that access needs to be available to occupational health guidance as well.   It will also be relevant to look at what training an employer has given employees in how they might do things safely and what precautions to take.

If the reason why an employee is refusing to attend work or stay in work relates to pregnancy, there will be other legal considerations that apply (see other blog on this topic).

It is worth noting that employers clearly cannot run their organisations when employees individually are able to make decisions about whether or not they attend work, even if it is reasonable to perceive serious and imminent danger from Coronavirus.  The distinction that an employer is going to need to make in a situation where they might wish to discipline or dismiss somebody is that in doing so, they do it not in response to the employee’s protected conduct, but in response to the circumstances in which because of the Coronavirus, the employee is unwilling or unable to safely return to work, but this will be a measured decision that would need to take place following proper procedures.  The employer would want to evidence what steps they have taken to protect health and safety first.

Refreshing Law Limited

21 May 2020