Health & Safety
Employers has a duty to provide a safe place of work and to protect the health and wellbeing of their employees. There is a raft of legislation enforcing this and employers will wish to avoid claims in this area.
It is important not to forget that your employees and their families will continue to be anxious about the risk of Coronavirus. So what do you do if having implemented physical changes within the office you have an employee who refuses to return to work because they are worried that their risk of catching Coronavirus continues possibly because of the use of public transport but also because of the risks associated with the workplace itself?
There is a section under the Employment Rights Act 1996 namely s.100 which is not often used but could be in this scenario. If an employee has a reasonable belief that they may be placed in serious or imminent danger (they could have conditions or be deemed to be in the vulnerable group) and as a result they refuse to return to the workplace or work or leave the workplace then they may have protection. If they are dismissed then any such dismissal could be automatically unfair, there is no minimum length of service and there is no cap on compensation. If the employer decides instead to reduce pay or place them on furlough as a result of any concerns raised, then if the employee resigns as a result then that constructive dismissal may be automatically unfair. This needs careful handling.
Good communication is essential and to ensure that you understand the employee(s) concerns and to explore how they may be alleviated if possible. Normally, an employee’s failure to turn up and perform their job unless ill or with the employer’s authority would amount to a breach of contract, and likely lead to disciplinary action or dismissal without notice. The current crisis alters this basic position in several ways.
Disciplining the employee or terminating the employee’s contract of employment for their refusal to return to work is not an option as stated above if they have reasonable grounds. If an employee reasonably believes that going into work puts them in serious and imminent danger due to COVID-19 (including on their commute) they can stay at home while continuing to be entitled to full pay. Detriments imposed by employers in response to this, including any disciplinary action or pay deductions, may be unlawful (pay deductions will also be “unauthorised deductions”) and dismissals where the refusal is the reason, or principal reason, for the dismissal will be automatically unfair.
The crucial questions are, therefore: does an employee believe that COVID-19 poses a serious and imminent danger to them, and is this a reasonable belief for them to hold? Although the answers will turn on the circumstances of each case, it is likely that in the current crisis many employees will reasonably hold such a belief, and so have the right to stay at home without detriment or dismissal.
Whilst an Employment Tribunal might be convinced that in workplaces where protective equipment is provided and social distancing rules are strictly adhered to, the risk of infection is sufficiently reduced to bar a reasonable belief in imminent danger this would be considered on a case by case basis. The fears or many employees who genuinely believe they are in danger if they go into work should be taken seriously particularly vulnerable groups of employees, or where the employer has not provided appropriate protective equipment or failed to introduce and enforce social distancing rules.