Are employees entitled to refuse to return to work on health and safety grounds due to COVID-19 concerns?
6th January, 2021
With the UK being placed back into lockdown and the government guidance for anyone who can work from home to do so, it is understandable that employees who cannot work from home having concerns about attending the workplace, whether they fear for their health or that of their loved ones. This can often find itself at odds with the needs of a business which may require the employee to come into the workplace if they cannot work at home. In many cases this will have been addressed by employers during the first lockdown, but individual circumstances and business needs can change over time.
This can place a strain on the employer/employee relationship and lead to friction or disagreement between them. Employers must balance the needs of the business and the duty to protect, as far as reasonably practicable, employee’s health, safety and welfare in a difficult and ever-changing work environment.
It is important therefore, that employers are aware of their legal requirement in line with health and safety to provide a safe working environment for their employees and workers. An employee has a right not to be subjected to a detriment if they refuse to attend work because of a ‘reasonable belief of serious and imminent danger’ (s.44 Employment Rights Act 1996 (“ERA”)). For example, a failure to pay someone because they refuse to attend work over genuine fears for their health and safety, may amount to a detriment. We have seen an increase in this being used by employees for COVID related reasons and will no doubt see more cases being tested in the tribunals in the coming months. Employers should seek legal advice in such situations and take a cautious approach to not paying an employee who has concerns about returning to work. Communication with employees is the key to try and understand their concerns and address them (wherever possible) to enable them to feel safe in the workplace.
It is therefore important that employers take steps to ensure, as far as possible, that the workplace is sufficiently safe and to make employees returning, or those continuing to come into the workplace feel safe. This is not an exhaustive list, but we have outlined below some practical steps for employers to consider:
- Ensure compliance with the Government’s COVID-secure workplace safety guidelines https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19The guidelines contain 14 guides covering a range of industries and employers may need to refer to more than one guide depending on the nature of their business and have been updated today, 6 January 2021. Ensuring compliance with the COVID-19 safety guidelines and specific risk assessments provided by the government to ease concerns which employees may have with the guidelines will help mitigate any potential risks. Ensure safe systems of work are in place and adapted and updated, where appropriate.These guidelines are a minimum requirement for employers to comply with and a failure to do so is likely to lead to real and significant risks in respect of health and safety, whistleblowing claims, employees refusing to come into work, claims for unlawful deductions from wages and employees resigning and claiming constructive unfair dismissal.
- Ensure that the business is up to date with current health and safety guidance, policy and procedures issued by the Health and Safety Executive and industry specific requirements.
- Carry out a COVID risk assessment and ensure that employees are aware of its outcome and that measures are taken in the workplace to allow a safe working environment are communicated to employees.
- Ensure absence policies are up to date and employees are aware of what to do if they have COVID-symptoms or need to self-isolate. It is an offence for an employer to knowingly allow an employee to attend the workplace when they are required to self-isolate.
- Communication is key. Ensure employees are aware of any risk assessments, safety measures and any changes impacting them whilst in the workplace. Ensure employees know how and who to raise health and safety concerns with and establish clear channels for dealing with concerns and complaints.
- Train employees on health and safety measures and duties. Ensure that employees know what to do to remove themselves from risk, for example, this could include removing themselves from a colleague who is not observing social distancing.
- Ensure that, wherever possible, remote facilities are being utilised to minimise staff having to travel.
- Ensure employees are listened to if they have concerns about returning to the workplace, engage with them and seek to understand any concerns they have about returning. Concerns should be considered on an individual case by case basis. Many employees have different circumstances to be considered. In many cases it may be possible to alleviate their concerns or reach an agreement and put steps in place to support their return if you are able. Employers have a duty to support an employee’s mental health as well as the physical surroundings. Every individual’s situation and concerns may be different, and it is important that employer’s offer as much support as possible.
- If an employee is vulnerable or genuinely concerned on health and safety grounds about returning, then consider options such as furlough leave, SSP, holidays or an agreed period of unpaid leave if, following a discussion with them, they still have concerns that cannot be addressed.
- Be clear on how your business will approach any infections in the workplace to protect its employees.
- Consider various duties for employees who are vulnerable or feel unsafe returning to the workplace.
It is important to not simply dismiss the concerns of employees about health and safety / COVID-related issues as this may lead to an increased risk of claims under s. 44 ERA, which considers the ‘belief’ of the employee in making their decision to refuse to attend work. In this circumstance, refusal to pay an employee for failuring to attend work may lead to potential claims of Unlawful Deduction of Wages and Constructive Unfair Dismissal. The more that an employer does to comply with Health and Safety requirements will help minimise the risk of claims and disputes in the workplace.
If you or your business would like advice in relation to employees returning to work or any other Employment law related matter please contact Debbie Coyne.
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