Refusing to work – how might employers’ health and safety obligations affect post-lockdown plans?

Prime Minster Boris Johnson’s much publicised “roadmap” out of the current lockdown in England has employers up and down and the country crossing their fingers that the Spring months could finally see a return to some sort of normality.

However, amidst the optimism and hope for a better summer and beyond, our old friend the Employment Rights Act 1996 contains two previously rarely heard of health and safety obligations which all employers must bear in mind to avoid running into unfamiliar difficulties in the post-lockdown era.

What are these obligations?

Under s44 of the Employment Rights Act 1996, where employees refuse to work, or take appropriate steps to protect themselves, in circumstances where they reasonably believe that they, or others, are in serious and imminent danger, they are granted specific protection from being subjected to a detriment for having done so. Protection under s44 is shortly expected to be extended to workers, as we explore in our blog here.

Similarly, under s100 of the Employment Rights Act 1996, employees are also protected from dismissal where they have refused to work or have taken appropriate steps to protect themselves (or others)  in the circumstances outlined above. Any such dismissal will be automatically unfair and a claim may be brought even where the employee lacks the two years’ continuous service usually required to pursue an ordinary unfair dismissal claim. There is also no cap on the compensation which can be awarded in claims for dismissal under s100, unlike ordinary unfair dismissal claims.

These specific sections of the Employment Rights Act 1996 were perhaps originally envisaged to cover employees working in more stereotypically dangerous working environments. However, the impact of the coronavirus pandemic means that these obligations are likely to become much more relevant for employers whose workplaces previously meant they to pay minimal attention to serious health and safety risks.

In what circumstances can an employee refuse to work?

The answer to this question will depend on the specific circumstances which apply to the employee and their working environment. However, in the context of the coronavirus pandemic, we can envisage a number of factors which may inform whether or not an employee is entitled to refuse to work or take other appropriate steps to protect themselves.

The first thing to say is that the employee’s belief in the danger posed to them must be reasonable. On the one hand, we could see this as removing unreasonable concerns from the equation entirely. However, on the other, this introduces a subjective element which may be difficult to predict.

Beyond this, if asked to decide upon this issue, an Employment Tribunal is likely to consider a number of factors when deciding whether it was reasonable for the employee to perceive themselves as being in danger from transmitting coronavirus, including:

• the COVID-19 transmission rates at the relevant time;
• the specific features of the employee’s environment and duties;
• the specific characteristics of the employee (or other person) who was allegedly exposed to the risk, such as whether they were in any of the vulnerable groups;
• the steps taken by the employer to ensure a “COVID secure” working environment, to mitigate the risk of transmission; or
• whether the danger genuinely “serious and imminent” as opposed to hypothetical.

What would constitute a “detriment”?

There is no specific definition of what constitutes a “detriment” in these circumstances but it is clear that it would include anything which places the employee at a disadvantage. Certainly, disciplinary action against the employee would constitute a detriment. Other things, such as being overlooked for a promotion or pay rise, or being moved to a different role or departments may also constitute detriments if the reason for them was the employee exerting their rights.

A particular difficulty for employers will arise when legitimate, but disadvantageous, decisions are taken in respect of an employee who has previously (perhaps recently) exerted their rights under s44. In such circumstances, it is not difficult to imagine that the employee may perceive, or allege, that the unfavourable decision has been taken because they exerted their rights. In this scenario, the onus will be on the employer to demonstrate the legitimate reason for the decision. Similarly, in dismissal cases, the onus will be on the employer to demonstrate that the dismissal was in fact for another, potentially fair, reason.

How should an employer respond when an employee exerts their rights under s44?

There are many things an employer can do to protect itself even before an employee exerts their rights under s44. By conducting appropriate risk assessments and putting in place measures to ensure a “COVID secure” working environment, an employer should be able to prevent the risk of ”serious and imminent” danger to its employees. Certainly, where an employer is unable to do so this may in itself suggest that workplace is not yet safe to reopen.

In the event that an employee does exert their right to either refuse to work or take appropriate steps to prevent danger under s44, the employer should be mindful of the risks of exposing the employee to a detriment and should not take any detrimental steps (or fail to take steps) where the reason for such steps (or failure) is the employee exercising their rights.

Where unrelated, but potentially disadvantageous, decisions need to be taken in respect of an employee who has exerted their rights under s44, it is critical that the employer is clear about the reason for the decision and that these are confirmed in writing at the time.

If you have any questions or concerns about your obligations to employees as your workplace opens up following lockdown, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.