Q&A: Reluctant Returners – Health & Safety

Q: We are a small office-based business and before the coronavirus hit, we had regular meetings with clients at our offices. During lockdown we furloughed our support staff, and everyone else was able to work from home – it wasn’t ideal, but we managed.

Once the Government started to lift the restrictions we carried out the appropriate risk assessments, put in place measures such as screens and hand sanitiser, and gradually began to reopen the office. Although some of our clients are happy to have meetings on the phone or online, there are some situations where they need to meet with us face to face.

The issue we have is that one member of our support staff is saying that she does not want to come back to work in the office as she does not feel it is safe. We do not feel that she could do her job from home. Furlough is running out soon, and she is refusing to come back to work at all, which rules out the Job Support Scheme.

How should we approach the situation and what options do we have? Can we terminate her employment because of her refusal to return?

A: Earlier this year the Government tried to persuade people to return to the workplace, but that advice quickly changed as the coronavirus situation worsened.  The current Government advice is that all employees should work from home if they can. However, it sounds as if in this case, this person would not be able to do her job from home.

I think the first step would be to try to have a meeting with her to find out more about the nature of her concerns. Is there some adaptation to the work environment which she feels you should have made, or are her concerns about the situation generally?

If you are unable to find a resolution, then you may have to look at terminating her employment, but it would be best to ensure you take advice before doing so, because there are particular risks involved in the current situation.

Employers have long been obliged to provide a safe working environment for their employees, and where an employer dismisses an employee because they have raised health and safety concerns or who have left or refused to attend a dangerous workplace, that dismissal will be automatically unfair.  That protection applies from day one of employment, so the employee does not need the normal 2 years’ service to bring a claim.  The compensation for these types of claims is also not capped, so these are sanctions which do have real teeth.  So how do these protections apply to the current Covid-19 situation and what can employers do to minimise the risks?

The protection applies where the employee uses reasonable means to bring to their employer’s attention circumstances which they reasonably believe are harmful or potentially harmful to health and safety.  It also protects employees who are dismissed where they have left or refused to attend the workplace in circumstances which the employee reasonably believed to be serious and imminent and which the employee could not reasonably avert.

These protections are very wide, and on the face of it may allow an employee to refuse to attend or return to work during the current pandemic.  However, the key to the protection is the word reasonable.

The employee’s belief that there are health and safety concerns has to be reasonable, so what can employers do to protect themselves?  The obvious answer is to ensure you have done everything you reasonably can to make the workplace as safe as possible, and in the Covid environment that will mean ensuring that there is a proper risk assessment which is shared with the workforce, and this will be likely to include social distancing, wearing of masks or other protective equipment where appropriate, and, most importantly following the Government guidelines for that type of workplace.  If that is done, then then it will be much harder for the employee to persuade an Employment Tribunal that they behaved reasonably in raising concerns relating to health and safety.

There are of course some areas which the employer cannot control, and concerns about those are much more difficult to resolve.  Many people are reluctant to travel on public transport, so what is the position if an employee refuses to attend work because they can only get there by public transport?  Or what is the position of an employee who is concerned, not for their or their colleagues’ health and safety, but for the well being of a vulnerable person they live with?

It is not clear whether Employment Tribunals will interpret the protections so widely as to cover these situations, and ultimately we will have to wait until there are some decided cases on these types of situations before we have a definitive answer.  Given the current backlog in the Tribunal system, that may well be a very long wait, and hopefully by that time the dangers of Covid-19 will be substantially lower than they are now.