What happens when an employer re-opens their business, but employees refuse to return because they are worried that they will become infected with COVID-19?
If employees are then dismissed, will such dismissals be treated as health and safety dismissals and so automatically unfair? Whilst most premises will be safe, in a pandemic situation, the matter becomes a little more serious.
The employer must carry out a risk assessment before recalling the staff. Having done so, they must then implement all the practical control measures. Once all reasonably practical steps have been taken, they would be justified in recalling their staff. If staff have ongoing concerns about returning to work, employers should discuss those concerns and reassure their staff. If necessary, give them an opportunity to raise a grievance.
The law
Sec 100 (1) of the Employment Rights Act 1996 deals with health and safety related dismissals. This means where an employee has been dismissed or has suffered a detriment because he/she raised a health and safety concern, then such a dismissal will be prima facie automatically unfair.
However, under sub-sections (e) and (d), employees have the right to walk out of work or refuse to attend work ‘…In circumstances of danger.... which the employee reasonably believed to be serious and imminent’. It should be noted that the legislation refers to the employees’ reasonable belief, not what the employer thinks. It is the employee’s belief that matters. Therefore, the question is “did the employee hold a genuine belief that there was a danger”?
Is COVID-19 or the risk of contracting it, a danger? Of course, it is. But when does that become an imminent danger? Clearly, this will depend on the circumstances. If an employee works in a hospital, dealing with infected patients or cleaning the premises, then the risk of getting infected are clear and more likely. In these circumstances, a dismissal due refusal to attend may be unfair. But in other working environments, the risks may not be realistic.
Risk Assessment
Employers need to carry out a risk assessment and implement the control measures identified. Elimination of the risk may not be possible; thus, the aim is to minimise the risks. Once the process has been completed, the employer must consult the staff to explain and discuss these measures. Consultations also encourage staff to raise issues which may have been overlooked. Staff are then required to follow these procedures. Remember, staff are obliged to follow all reasonable health and safety instructions and are under a specific statutory duty (under the Health and Safety at Work Act 1974), to look after their own safety as well as that of their colleagues at work.
Where employees have expressed concerns, employers must meet them to discuss these with a view to re-assuring them. Thereafter, employees must prove that risks/dangers remain. In this case, an employer should reassess their risk assessment and procedures to address the omissions where relevant. Once the concerns have been addressed, it becomes very difficult for the employee to argue that they held a genuine and reasonable belief of serious and imminent danger.
Where all reasonable and practicable steps have been taken, and the employee is not able to explain serious and imminent danger to his safety, they would be expected to return. A refusal to attend will be unreasonable. In these circumstances, the matter should be investigated before summoning disciplinary proceedings.
But what happens where the employee is refusing to return because they are worried about infecting a vulnerable person they live with? This of course is far more complicated and requires an investigation about the vulnerable persons status/relationship, medical information. In such circumstances, employers should seek appropriate advice.
Quest can help and guide you through these steps to ensure that the matter is dealt with sensibly and effectively. We have expertise in both fields to be able to advise you. Furthermore, you can utilise our consultancy services for all your ongoing issues as well as drafting services.
For further information please contact us on 01455852028.
