Although there will inevitably be redundancies brought about by reduced work and insolvent businesses in the ensuing economic recession, most workers will return to their previous roles at the end of the Coronavirus Job Retention Scheme (CJRS).
One of the main challenges for employers is how they can resume operations safely to avoid the spread of infection and the heightened risk that (COVID-19) poses. It is also crucial because failing to provide a safe and suitable working environment is unlawful, giving rise to criminal and civil liability.
The measures that are necessary to protect workers are specific to each workplace and although the government has provided sector-specific guidance, the obligation is on every employer to assess and minimise the risk for their particular environment.
There will be changes common across most businesses, including increased hand-washing and cleaning facilities to ensure good hygiene practices and separating or distancing workers to promote safe working.
During the pandemic and for as long as COVID-19 continues to pose a threat to illness, injury or life, special consideration will have to be made for the risk it poses. This includes thinking about which workers, customers, service users, suppliers and members of the public might be at risk, deciding how severe that risk is and determining the action that can be taken to remove or at least control the risk(s).
It is important that employers not only follow the government guidance but also that they carry out a risk assessment of the workplace in consultation with their workers.
Consultation with workers is so important because there are statutory protections afforded to workers who are fearful of a return to work, or are otherwise unable or unwilling to return to work without reasonable assurances around their safety.
Sections 44 and 100 of the Employment Rights Act 1996 (ERA) provides employees with the “right” not to be subjected to a detriment by their employer should they take certain steps in connection with health and safety.
Under s.44(1)(d), an employee is protected against detriment when, “in circumstances of danger which they reasonably believed to be serious and imminent” they left, proposed to leave or refused to return to their workplace.
Under s.44(1), an employee is likewise protected when, in the same circumstances, they take appropriate steps to protect themselves or other persons from the danger.
S.100 of the ERA provides the equivalent protection against dismissal, where in the reasonable opinion of the employee, the prevailing circumstances represent a real risk of serious and imminent danger, which they could not reasonably be expected to avert. This is both a subjective and objective test.
So what do these statutory protections mean to an employer?
Well ss.44 or 100 can be relied on if an employer seeks to discipline employees who refuse to attend their workplace, or to challenge the reasonableness of a direction for them to attend the workplace.
Any resulting dismissal for refusing to attend the workplace may result in a claim for automatically unfair dismissal under s.100 if the employee believes that attending the workplace represents a real risk of “serious and imminent danger”. It is worth noting that employees do not need any length of service to be entitled to claim unfair dismissal under s.100.
The following scenarios and factors are likely to feature on the spectrum of reasons why employees may refuse to return to the workplace on health and safety grounds and employers should listen to the concerns raised and take the appropriate action needed:
- Is the danger claimed the general existence of Covid-19 or is it something specific to the workplace? Is there a particular danger inherent in the work? Have colleagues presented with symptoms of Covid-19?
- What level of risk assessment has been undertaken by the employer, and more broadly, are all health and safety duties being complied with? Is there a clear audit of how the employer has evaluated and balanced the risks against appropriate control measures?
- Is the employee at risk due to any underlying condition or pregnancy? Employers would be wise to consider cases on their personal circumstances and listen to the concerns raised by individuals.
Ultimately the onus will be on the employer to ensure that an employee is not instructed to work in an environment that would be detrimental to their health or present the risk of serious danger. It is therefore important to carry out risk assessments and consult with employees to assure them that you have put in place appropriate safety measures.
We may well see an increase in employment litigation on health and safety related dismissals and detriments and employment tribunals will need to engage in some form of fine balancing exercise to determine whether the employee’s belief in the circumstances of serious and imminent danger was reasonable.
It is hoped that sensible employee relations will come to the fore to navigate both employers and employees through these difficult situations.
If you would like further help on any of the issues raised in this article or any employment law issue please contact Carmel Sunley of Sunley Workplace Solutions.