Currently, relatively old statutory provisions exist which protect employees from suffering a detriment or dismissal in certain health and safety specific scenarios. These provisions were rarely used historically, but have become particularly poignant in the recent pandemic where individuals may be subjected to dismissal or disciplinary action, for refusing to return to a workplace which they consider to be unsafe.
In a case involving the Independent Workers Union and the Secretary of State for Work and Pensions handed down last year, the High Court have held that the UK had failed to properly implement the EU Health and Safety Framework Directive from where the employee protection is derived, by limiting that protection to employees only. As a consequence, new Regulations come into force on the 31st May 2021 which extend the rights currently afforded to employees, to workers as well. Obviously, workers won’t acquire unfair dismissal rights but they will be protected from suffering detriment and loss in these specific health and safety circumstances.
The extension of protection to this additional category provides an opportune moment to revisit the rules, particularly as we emerge from this third lockdown and undoubtedly during a time when the potential risk of claims arising from this previously little used statutory provision has increased.
The specific protection is provided where an employee or worker, remains absent or proposes to remain absent from work due to a reasonable belief that attendance at work would put them in serious and imminent danger, and/or where an individual takes or proposes to take appropriate steps to protect themselves or others in the reasonable belief that there is a serious or imminent danger.
In terms of a finding of dismissal because of the raising of specific health and safety concerns, this is automatically unfair (applying to actual and constructive unfair dismissals) and there is no qualifying service requirement. What is more, compensation is uncapped. It is therefore clearly very important not to get this wrong. It is also foreseeable, that in a context of a health and safety concern, a whistleblowing detriment or dismissal claim risk could also arise. Here again similar protection exists for those without a qualifying period and for which unlimited compensation is available.
It is possible that an employee’s refusal to attend work due to a belief that they will be at risk of contracting Covid-19 could be protected under these provisions. The concept of “danger” has been interpreted broadly and it seems commonly accepted that it could include the risk of contracting Covid-19 from a colleague or patient or client or similar.
It is not necessary for an employee to demonstrate that the danger actually exists, rather that there is a reasonable belief that it does, and that the danger is serious and imminent. Effective communication to all staff with clear policies and procedures and reassurance in place is really important to help mitigate the risks of such allegations.
It is not a question of eliminating all risk of danger. The question is whether the employee has a reasonable belief in a serious and imminent danger, and therefore it can be subjective in terms of the employee’s own health and particular circumstances. Effective steps to attempt to mitigate risks of contracting the virus, and ensuring that these are visible and well-communicated will undoubtedly help.
Where there is such reasonable belief in a danger which cannot be avoided, an employee or worker is entitled to refrain from attending work without suffering repercussions.
The wording of the legislation potentially appears to be wide enough to cover an employee who has a reasonable belief that their commute would represent a serious and imminent danger in this way. The test is whether it is a danger that the employee could not reasonably be expected to avert, and therefore if there were alternative means of commuting to work this may avoid the issue. This underlines the importance of employers being flexible and allowing travel at off-peak times to mitigate risk of dangers posed or adjusting hours of work etc depending upon the circumstances. This is all unchartered territory and there is no authority on the point, but it is foreseeable that it will be tested.
It is clear in this context, that allegations that the workplace or an employee’s commute are unsafe, poses very real risk to employers and therefore employers would be well advised to consider carefully an employee’s justification for failing to attend work for example, before taking any action. Clear comprehensive and well communicated policies and procedures around safety and Covid secure workplace practices are essential, and obtaining a clear understanding of employees concerns and motives and seeking ways to mitigate these and offering reassurance is also important. Ultimately it may be reasonable to take a view that an employee’s concerns are not reasonably justified or justifiable and that disciplinary action or even dismissal can be a potential lawful outcome, but this should really be a last resort after careful consideration and other attempts to deal with the issue have been tried first of all.
At Ellisons our specialist Employment Law Solicitors are able to offer you prompt and practical advice to help you resolve the issues as quickly as possible and on the right terms. Contact the Ellisons’ specialist Employment Law Solicitors today on 01473 556900 or email us at [email protected].