As lockdown measures are eased and as the Coronavirus Job Retention Scheme is wound down, thousands of employees across the UK are facing the prospect of returning to work for their employers for the first time in months and since lockdown began.
This number will only increase moving forwards as the UK seeks to return to some form of normality and as various measures are lifted to try to stimulate the UK economy.
Employees coming back to work post-lockdown or post-furlough raises a number of important questions for both employers and employees, particularly where it is impossible for employees to work from home. For example: can an employer order its employees to return to work in circumstances where employees may not feel that it is safe to do so, and in such cases, what rights and protections do employees have if they feel unsafe and / or refuse to return to work?
We explore these issues below, including the steps that we recommend employers should take in order to mitigate against the risk of employees refusing to return to work and to reduce the risk of facing Employment Tribunal claims.
Can an employer require that an employee returns to work?
In normal scenarios, the short answer is yes, an employer is perfectly entitled to insist that its employees attend work, and where they fail to do so, can refuse to pay them and/or take disciplinary action in respect of their unauthorised absence and/or failure follow a reasonable instruction.
Of course, we are not now in a normal scenario, far from it, and many employers are likely to encounter issues when trying to bring their workforce back to work. The simplest solution clearly is to allow employees to work from home wherever possible, although it may be that this cannot continue forever or that the nature of the employee’s role means that they are unable to work from home.
If an employer has failed to take the necessary steps to ensure a safe working environment for its employees, then there will come a point when it will not be a reasonable instruction for an employer to require an employee to attend what may be an unsafe place of work.
Employers must be acutely aware both of the various protections which are afforded to employees in the UK who leave work or who refuse to attend work due to concerns regarding their health and safety, and of the risks of taking any action against such employees. Before the COVID-19 outbreak, these protections were rarely seen and we suspect that many employers may not be aware of them.
Duty of care
All employers have an implied duty to take reasonable care of the health and safety of their employees. Note that this duty exists in addition to the duties that arise under tort and health & safety legislation. Employers are also obliged to provide a suitable working environment for its employees, which is a broader duty.
To aid employers, the government has published specific guidance for a range of different types of work in order “to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic” and to avoid COVID-19 spreading in the workplace. There is also workplace guidance that has been released by the World Health Organisation (WHO) and a risk assessment tool which can be accessed via the Health and Safety Executive’s (HSE) website.
It is imperative that employers carefully read and familiarise themselves with this guidance and ensure that their workplaces adhere to all of the relevant recommended health and safety measures. If you need any advice regarding any health and safety guidance and/or any measures that you are proposing to adopt, then please contact a member of our Regulatory team.
A failure to follow the COVID-19 workplace health and safety guidance could result in employees alleging that their employer breached its implied duties to take reasonable care of their health and safety and in their obligation to provide a suitable working environment. This could entitle the employee to resign and claim that they have been constructively unfairly dismissed. Any failure could also lead to personal injury claims and / or criminal prosecution for breaches of health and safety legislation.
Employee protections against detriment or dismissal
In the UK, employees (and in certain cases, workers) also have additional statutory rights not to be subject to a detriment or dismissed in circumstances where they raise health and safety concerns.
Section 44 of the Employment Rights Act 1996 (ERA 1996) – detriment
We have started to see, and you may also have seen, section 44 of the ERA 1996 being raised by employees (and by their trade union representatives on their behalf) who are reluctant to or simply refuse to attend work on the basis that they do not feel that it is safe to do so. Section 44 protects all employees, regardless of their length of service, from being subject to a detriment by their employer for leaving or refusing to attend work “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” (section 44 (1)(d)). A detriment in these circumstances could include, for example, any disciplinary action taken against an employee or even withholding full pay.
Prior to COVID-19, it was very rare to encounter section 44 claims and there is very little case law in this area. That said, clearly the trend is only likely to increase in light of the pandemic. Employers are therefore now far more likely to be faced with employees (and trade unions) seeking to rely upon section 44 in arguing that they were entitled to leave or refuse to return to work and should not be subject to any detriment by their employer as a result.
As such, employers should think very carefully and, crucially, seek legal advice, prior to taking any action that could amount to a detriment in order to limit any exposure to a Tribunal claim.
Section 100 of the ERA 1996 - dismissal
Section 100 of the ERA 1996 provides that a dismissal shall be automatically unfair where the reason for the dismissal was that:
- The employee left or stayed away from a dangerous workplace, which they reasonably believed to posed a serious and imminent danger that they could not reasonably be expected to avert (section 100(1)(d)); or
- The employee took appropriate steps to protect themselves or others in circumstances of danger that they reasonably believed to be serious and imminent (section 100(1)(e)).
Such dismissals do not require qualifying service and may apply to actual and constructive dismissals.
Employers will therefore need to exercise caution and should seek guidance from their legal advisors before moving to dismiss any employee on the grounds of their absence if the proposed dismissal results from an employee’s belief that attending work would put them in danger of contracting COVID-19, and where they could not reasonably have been expected to avert that risk.
Where an employer cannot show that it took the appropriate steps to mitigate any potential danger, particularly where the workplace is somewhere where employees may feel at a greater risk of contracting COVID-19 and/or where cases involve employees who suffer from pre-existing health conditions, it is far more likely that an employee could establish that they held a reasonable belief that there was a serious and imminent danger to their health and safety. Any Tribunal considering this issue will scrutinise the steps taken by the employer to reduce the risk of employees getting the virus at work and how well this has been communicated to its staff.
Of course, much may depend here on the status of the pandemic at the time of the employee refusing to attend or leaving work. One would assume that it would be more difficult for a ‘fully fit and healthy’ employee to argue that it was reasonable for them to believe that there was a serious and imminent danger to their health and safety if the number of cases of COVID-19 has significantly fallen and/or if more effective treatments and preventative measures have been discovered and implemented.
Whistleblowing
An employee would also be regarded as having been automatically unfairly dismissed if the reason or principle reason for their dismissal is that they have made a protected disclosure (section 103A ERA 1996) and all workers (not just employees) have the right not to be subjected to any detriment for having made a protected disclosure (section 47B(1) ERA 1996).
These rights do not require qualifying service and there is no upper limit on the amount of compensation that can be awarded.
Whether a whistleblower qualifies for such protection depends on a number of factors, including whether or not they are found to have made a qualifying protected disclosure. In the context of COVID-19, it is certainly conceivable that an employee who raises concerns about their employer failing to implement sufficient safety measures in the light of the pandemic could be protected against dismissal or detriment as a whistleblower as this complaint could be deemed to be a qualifying protected disclosure.
This is, of course, a slightly different scenario to an employee refusing to attend work altogether. Even if an employee has made a protected disclosure regarding health and safety concerns, it may not in of itself justify their decision not to attend work. However, the basis for any action which is a detriment or dismissal would need to be carefully analysed before proceeding.
Recommended steps for employers
Whilst this appears to paint a somewhat bleak picture for employers in the knowledge that COVID-19 is not going to go away any time soon, there are a number of steps that we recommend that you take in order to best protect your business and to avoid encountering these issues so far as possible when trying to get your employees successfully back to work.
By way of summary, these include:
- Ensure that you have implemented all of the appropriate health and safety measures recommended by the government and (if relevant) the WHO. Undertake workplace and individual role risk assessments. If you are unsure about any health and safety steps that you have taken, seek the guidance of our Regulatory team and the HSE’s risk assessment tool.
- Be transparent and open with your employees about all of the steps that you have taken to help minimise the risk of them contracting COVID-19 at work. Explain why these measures have been implemented and why they will be effective in reducing the risk.
- Find out and consider carefully the reasons why any employees have refused to attend work and treat each individual case on its own merits. Ask employees to identify what their specific concerns are about the safety of the workplace and/or their role.
- Identify and listen to employees’ concerns, and consult with them about how you may address and have already addressed them. If necessary, reassure employees of the measures that are already in place to protect them and consider if any further reasonable steps may be put in place so that the employee feels safe to return to work.
- Keep under constant and continual review the health and safety measures that you have implemented. Ensure that these measures are enforced if breached. Keep an open dialogue with your employees (including their representatives) regarding any health and safety concerns they have.
- Think carefully and seek legal advice before taking any action against any employee which is in any way detrimental to them where the employee has cited health and safety concerns.
We hope this guidance assists you and your business. If you have any queries or questions, please do contact a member of our Employment team.
This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter
