Under the Employment Rights Act 1996 (‘ERA’), employees are protected from dismissal and detriment on a number of health and safety grounds, including if they refuse to attend work due to health and safety concerns. These provisions are always important for employers to be aware of to avoid potential liability and are especially pertinent amid COVID-19, as many employers ask employees to return to the workplace.
- The relevant law
Section 44 of the ERA protects employees from suffering any detriment as a result of acting or failing to act on a number of health and safety related the grounds. Similarly, section 100 of the ERA confirms that the dismissal of an employee due to any of these grounds will be automatically unfair. The grounds for both sections are identical and summarised below:
- Suffering a detriment or being dismissed for carrying out (or proposed to carry out) health and safety activities designated by the employer.
- Suffering a detriment or being dismissed for being a designated workplace health and safety representative or committee member and performing (or proposing to perform) the necessary functions.
- Suffering a detriment or being dismissed for raising health and safety concerns through reasonable means.
- Suffering a detriment or being dismissed for leaving or staying away form a dangerous workplace.
- Suffering a detriment or being dismissed for taking action to prevent danger.
- COVID-19 and sections 44 and 100 of the ERA
With the Government set to slowly relax the lock down currently in place in the UK in the coming months, many employers are planning for or starting to ask employees to return to their place of work. However, with no vaccine currently available and considering the seriousness of the virus, you may encounter health and safety concerns from employees. In light of the above duties, these concerns should be taken seriously and employers should consider their response carefully.
One of the most relevant grounds amid COVID-19 will be employees who leave, propose to leave or refuse to return to their workplace due to reasonably believing there to be a serious and imminent danger which they could not be reasonably expected to avert. Although we are not aware of any case law on sections 44 or 100 relating to a pandemic, it is clear that the courts tend to adopt a wide interpretation, it is therefore entirely possible that coronavirus would fall under these provisions. The case of Harvest Press Ltd v McCaffrey further supports this in which the Employment Appeals Tribunal noted that the word danger in section 100 is used without limitation and covers ‘any danger however originating’.
It will be crucial for employers to try and mitigate any danger by taking steps to reduce the risk. Any measures taken should be effectively communicated to employees, as the question for a court will be whether the employee reasonably believed a danger to exist in the workplace.
Employees who use reasonable means to bring their employer’s attention to health and safety concerns is another protected ground employer’s should be aware of at this time. This may be the case even if the employee’s belief was mistaken, as the case of Joao v Jurys Hotel Management UK Ltd established.
An employee taking action to prevent danger is a ground that could be especially relevant in the context of PPE. It is important for the employee to reasonably believe that there is a serious and imminent danger, the steps taken to protect themselves to be appropriate and that they are either dismissed for this or treated detrimentally, rather than simply requested to stop taking this action. As was highlighted in the case of Oudahar v Esporta Group Ltd, it is the employees state of mind that is relevant here, not whether the employer believes there to be a danger.
It therefore may be the case that an employee’s concerns following a request to come into the workplace amid coronavirus may fall within the scope of sections 44 and 100. However, in absence of any case law or government guidance on the relationship between these provisions and COVID-19, there remains huge uncertainty. If employers find themselves in this situation, we would advise you to seek legal advice before taking any action against the employee, to avoid potential liability under sections 44 and 100 of the ERA.