We have already seen the beginnings of the return to “the new normal” with the Government announcing a gradual easing of the “hard” lockdown measures. Whilst this is good news for the economy, it comes with additional and unprecedented burdens for employers and their staff. Both are currently cast adrift on a sea of confusing documentation bubbling up on a regular basis from Government, the Health and Safety Executive (HSE) and the Information Commissioners Office (ICO). The journey to the other side is going to involve some careful navigation on the part of employers simply because they are responsible for a workforce who may be afraid. Fear prompts two instinctive reactions: fight or flight. Neither is an appealing prospect, as both spell conflict and potential litigation. What follows will hopefully help to steer a path to safer ground that will reduce the fear, increase confidence and avoid the perfect storm of staff refusing to come to work and being ready to litigate, quite literally for their lives.
Consider this conundrum:
- Employers have a legal duty of care for their staff and a responsibility to take reasonable steps to protect their health and safety; but
- Employees may be afraid that if they return to work, they risk contracting COVID-19 and/or passing it on to family members.
As a result of this, there is the very real possibility that staff will refuse to return to work and expect to be paid even where they don’t come in. It is essential to understand the rights of employees and the responsibilities of employers in this situation.
With the sounding of the siren for a return to work, employers must take “reasonable” steps to ensure that the workplace is safe for their staff to return to. Employees have the legal right to refuse to return to work where there are circumstances of danger which they “reasonably” believe to be both serious and imminent. If they are disciplined, treated detrimentally (such as not being paid) or dismissed for taking this stance, they may have claims for automatic unfair dismissal and injury to feelings.
And therein lies the rub: the employer must act reasonably in providing a safe working environment whilst employees may refuse to return to work if they reasonably believe that there is a serious and imminent risk of danger. The scope of this blog does not cover the specific issues of clinically vulnerable and clinically extremely vulnerable employees; nor does it touch on the possibility for discrimination claims. Its focus is on health and safety dismissals and detriments.
Government Guidance offers a tidal wave of recommendations for employers to protect their staff as they return to work. Following the Government Guidance is the best way of demonstrating that employers have taken reasonable steps to protect the health and safety of their staff. If this is communicated to staff, and agreed with them through careful consultation, it will create confidence that coming to work is as safe as it can reasonably be. This will go a long way to ensuring that employees cannot have a reasonable belief that there working environment poses a serious and imminent danger to them. Remember:
Employees have the right not to be dismissed, or subjected to any detriment, by their employer where: “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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. Similarly, the law gives protection for employees from dismissal or detriment where, “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
Each of these rights requires a “reasonable belief” on the part of the employee that there are circumstances of danger which are “serious and imminent”. There is no current case law directly on the subject for COVID-19 but the following points are important:
- the word ‘danger’ is likely to cover any danger however originating – the actions of other employees count, e.g. social distancing;
- COVID-19 is a serious danger, whether it is imminent in the workplace will be a question of fact regarding the steps taken by employers to provide a COVID-secure working environment.
- Health and safety case law does some helpful guidance on steps that employers can take to avoid claims: a senior structural engineer instructed to provide structural advice on a tunnel at Marble Arch tube station, was held not to have a reasonable belief that he was in circumstances of serious and imminent danger when he refused to enter a tunnel through a manhole. He was unable to prove that there was a serious or imminent danger because (i) the employer had done a risk assessment, (ii) the employer had implemented risk management measures and (iii) the employer had communicated these steps to the engineer before he was instructed to carry out the task.
Whether an employee has a reasonable belief of serious and imminent danger will depend on the facts of each case. The following will be taken into account: the extent to which the employer has assessed risks and followed the Government Guidance; whether any further safeguards such as PPE can be provided; any other mitigation measures; whether the work means that certain safeguards cannot be taken; the vulnerability of the employee or those with whom they live from the vulnerable to the extremely vulnerable.
The best advice is for employers to follow the most recent Government Guidance and set up and implement all protections that they reasonably can. Throughout the process they should communicate, consult, negotiate and agree the measures with their workforce or their representatives. Whilst this offers no immunity from litigation it remains the best way of defending any claims.
The three key steps are:
- Do a risk assessment;
- Implement the recommended measures;
- Communicate and consult effectively with staff about both the risks and the measures.
In these challenging times it is vital to work together keep staff safe and to get the business moving again. Dismissing, disciplining or withholding pay from staff who refuse to come to work may result in claims but one thing is certain: it is not likely to resolve the issue of getting staff back to work and embracing the “new normal”. Employers need their staff available to work and discipline does not create good relations. For that very reason it is vital that employers have followed the steps recommended above before expecting their staff to return to work. In doing so the likelihood of successful claims is also reduced. To help your business to prepare for the return to work Burnetts have developed a Guide to Risk assessments, a fact sheet of FAQs and a flowchart of factors to consider in preparing to return to the “new normal”. This will be available on our website to all our current and prospective clients shortly. Burnetts is here to help you get back to business.
This blog does not constitute legal advice and liability for reliance on the views and opinions expressed is excluded. Specific advice on your own particular circumstances should always be sought.
If you require specific legal advice please contact Katie Bird at Burnetts on 01228 552222 or firstname.lastname@example.org and she will put you in touch with the Employment team who will be happy to assist you.