Coronavirus – Workers’ Health and Safety Concerns

Some employees who are still required to attend their workplace during the coronavirus pandemic may have significant concerns over doing so, both in terms of the risks to their health and safety and that of the other members of their household. In some cases, an employee’s concerns may become so serious that they either leave their workplace or refuse to return to it. We take a look at the circumstances in which it may be permissible for an employee to do this, and what legal issues could arise.

Under section 100(1)(d) of the Employment Rights Act 1996, an employee is protected from being dismissed by their employer respectively, when:

“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he/she could not reasonably have been expected to avert, he/she left (or proposed to leave) or (while the danger persisted) refused to return to his/her place of work or any dangerous part of his/her place of work”

There are also equivalent provisions at section 44(1)(d) of the Employment Rights Act where the employee is subjected to a detriment (i.e. disadvantaged), but not dismissed.

The first important thing to note is that the employee must have reasonable belief that the danger is serious and imminent.

The second important point is that the danger must be one which the employee could not reasonably have been expected to avert.

Although unfair dismissal claims normally require the employee to have 103 weeks’ service in order to be eligible, that is not the case with claims under section 100, so any employee could bring this type of claim regardless of their length of service. Detriment claims under section 44 also do not have a service requirement.

With both types of claim, there is no limit on the compensation that can be awarded to the employee for this if their claim is successful.

It is also worth noting that if the employee is pregnant, different/additional protections apply.

Each case will depend upon its own facts. For instance, a small fire at an office might not amount to a serious and imminent danger, especially where there is a fire extinguisher at hand and the employee has been trained in how to use it. However, a small fire in a workplace where flammable chemicals are around is likely to present a much greater danger, especially if it was discovered by an employee who has had no training in how to deal with it.

A Coronavirus Example

Frank works in a small independent supermarket. He has been employed there for three years and has been working throughout the Government “lockdown”, as the store is classed as an essential business. He is concerned that customers are coming closer to him than the guideline 2 metres under “social distancing.” He is also wary of handling cash and products which have been touched by customers, especially those in cardboard boxes.

Can Frank just walk out and refuse to come back to work until this is all over?

Whilst it is up to Frank whether to walk out or not, he could find that if he does so, his employer might dismiss him. If so, he might struggle to show that this was an unfair dismissal.

Although it seems likely that the coronavirus amounts to a ‘serious and imminent’ danger, we would need to know what has changed to make Frank reasonably believe that he is in serious and imminent danger of catching coronavirus. Was he dealing with a customer exhibiting coronavirus symptoms? Was he promised personal protective equipment that has not arrived?

Similarly, we would need to know what Frank could have done to avert any danger. For example, had he already raised his concerns and ideas to alleviate some of the risks with his employer? If he has said nothing, then walking out does not seem reasonable.

There are some cases where employers are facing allegations that they are not doing enough to protect their employees’ health and safety, where these provisions potentially apply. In addition, if an employee were to ‘blow the whistle’ about their concerns and then they are dismissed or subjected to a detriment, they would have potential claims on that basis as well.

As already mentioned, each case will turn on its own facts and there is no hard and fast rule as to what amounts to reasonable belief, or serious and imminent danger.

Communication between employers and employees is going to be hugely important whilst the pandemic is ongoing, and from an employer’s perspective documenting that communication, listening to what employees have to say and taking the necessary steps to protect them will be vital.