Employers are bound by the requirements of the Health and Safety at Work Regulations Act 1974 to protect the health, safety and welfare of employees and workers. This means that workers have the right to a safe working environment. However, there is currently no protection for workers (as opposed to employees) that refuse to attend the workplace because they have concerns that their health or safety may be in serious or imminent danger.
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (the ‘Order’) is expected to come into force on 31 May 2021 to address this loophole. It will extend the protection from health and safety detriment that employees currently have to ‘workers’ (but not those who are truly self-employed).
In this article, Michelle Chance (Partner and Head of Employment) and Choy Lau (Senior Associate) explain what this means for workers.
What is the additional protection being afforded to workers?
s.44 Employment Rights Act 1996 (‘s.44 ERA’) will be amended to include the following new section:
s.1A a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that:
- in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or
- in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.
This means that from the implementation date of the Order (which is expected to be 31 May 2021) a worker could refuse to attend their workplace on the basis that they reasonably believed that they would be in serious or imminent danger from COVID-19 infection, and they are protected against suffering any detriment from their employer for exercising this statutory right.
In order to succeed in a claim for detriment under s.44 ERA, the worker must have been subjected to a detriment ‘on the ground’ of the worker’s actions to avoid serious or imminent danger. If the employer can show that the alleged ‘detriment’ was not materially influenced or motivated by the worker’s protected act, then the claim will fail.
Does this mean that employees/workers have a blanket right not to return to work when workplaces start to reopen as COVID restrictions are eased?
No, it is not a blanket right to refuse to return to work.
The worker (which includes employees) will only be able to rely on the s.44 ERA protection where they have a ‘reasonable’ belief that they (or other people, for example vulnerable family members) would be in serious and imminent danger of catching COVID-19 if they returned to work.
Whether the worker had a reasonable belief will be a matter for the tribunal to decide in each case. A tribunal will consider all of the circumstances, which could include the scientific advice that was available and relevant at the time, the employee’s personal circumstances and what steps the employer took to mitigate the risk of COVID infection.
An employer may be able to show that the worker’s belief was not reasonable if they had carried out risk assessments of the workplace, consulted with staff on the risks and steps taken to mitigate them, and implemented reasonable safeguards and measures to reduce the risk of COVID infection, in accordance with Government guidance.
If the worker has underlying conditions, is categorised as clinically extremely vulnerable, is pregnant or has vulnerable family members, his or her fear of contracting a serious case of COVID-19 might be more reasonable than, say, that of a healthy 21 year old. However, it should be borne in mind that new shielding guidance has recently been issued by Public Health England to those categorised as extremely clinically vulnerable. With effect from 1 April 2021, they will no longer be advised to shield and if they cannot work from home, they are being advised to go to work and they will no longer be eligible for statutory sick pay for shielding.
Tips for employers as they prepare to bring people back to work as COVID restrictions ease
- Carry out a risk assessment and identify the risks of COVID transmission.
- Consult with staff (and where applicable employee representatives) on the outcome of the risk assessment and the steps you intend to take to mitigate the risk of transmission, including the latest Government guidance on social distancing, Personal Protective Equipment (PPE) and other industry specific measures required to make the workplace safe.
- Speak to staff about their concerns and the reasons for any hesitancy to return to work. Listen to and take into account their personal circumstances and consider what else you could do to allay their fears. Consider flexible working arrangements, working from home, or other adjustments to assist. Employers have a duty to make reasonable adjustments for disabled employees (including workers) so if the individual has an underlying condition, consideration needs to be given to whether they are disabled for the purposes of the Equality Act 2010 i.e. do they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry our normal day-to-day activities? If so, adjustments over and above those stated in government guidance will need to be considered.
- Regularly review your health and safety risk assessment to identify new risks that may emerge as medical advice changes and new variants of the disease emerge.
- If an individual refuses to return to work, seek legal advice before taking any action which could be detrimental to the worker/employee, including any decisions relating to pay since a reduction in pay could amount to a ‘detriment’.
- Note that employees (but not workers) that are dismissed for refusing to attend a place of work because they have a reasonable belief of serious or imminent danger can claim ‘automatic unfair dismissal’ under s.100 Employment Rights Act. Compensation for such claims is uncapped and the employee does not need to have 2 years continuous service in order to bring such a claim.
At Rosenblatt Limited, our specialist Employment Team advises both Employers and senior executives. If you are affected by any of the issues arising in this blog, please do contact us.
